UNIVERSITY 

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Xeaal  Classic  Series 


MIRROUR    OF    JUSTICES 


Xegal  Cla^eic  Scries 


QLANVILLE 

latroduetiou  by  Joseph  Henry  Beale,  Jr.,  A.3I.,  LL.D. 

BRITTON 

Introduction  by  Hon.  Simeon  L.  Baldwin,  LL.D. 

LITTLETON'S   TENURES 

Introduction  by  Eugene  Wambaugh.  LL.D. 

MIRROUR  OF  JUSTICES 

Introduction  by  Hon.  William  C.  Robinson,  LL.D. 


THE 

MlERjpUR  OF  JUSTICES 

WRITTEN  ORIGIN ALLY 

IN  THE  OLD  FRENCH,   LONG  BEFORE   THE  CONQUEST  ; 
AND-MANY  THINGS  ADDED 


BY 


ANDREW  HORNE 


TO   WHICH    IS   ADDED 


THE   DIVERSITY   OF    COURTS   AND    THEIR 
JURISDICTION 

TRANSLATED  IXTO  ENGLISH 
BY 

^y.  H.,  of   Gnti/\s  Inn,  Esq., 


Jura  publica  certissimn  sunt  vitie  huniaiice  solnfio,  infinnorum  auxilia, 
imjiioriim  /rreiirf.— Cassiodor. 


WITH  AN  INTRODUCTION 

BY 

WILLIAM  C.   ROBINSON,   LL.D. 

•WHITEFORD   PROFESSOR  OF  LAW  IN  THE  CATHOLIC  UNIVERSITY  OF  AMERICA 


WASHINGTON,  D.  C. 

JOHN  BYRNE  &  CO. 

LAW    PUBLISHERS    AND    BOOKSELLERS 
1903 


J 


\ 


Copyright,  1903, 

BY 

JOHN  BYRNE  &  CO. 


^ '24-64- 


CONTENTS. 


page; 

Introduction ix 

Translator  to  the  reader 1 

The  Preamble 12 

Chap.  I.     Sect.  1.     Of  the  oifences  against  the  peace 17 

Of  the  original  of  tlie  law 17 

Sect.    2.     Of  the  coming  of  the  English  into  tliis  realm.  IS 
Sect.    3.     Of  tiie  first  constitutions  made  by  the  an- 
cient kings 21 

Sect.    4.     Of  offences,  and  the  division  of  them 30 

Sect.    5.     Of  majesty 33 

Sect.    6.     Of  falsifying 37 

Sect.    7.     Of  treason 39 

Sect.    8.     Of  burners 40 

Sect.    9.     Of  manslaughter 41 

Sect.  10.     Of  larcenies 45 

Sect.  11.     Of  hamsockne  or  burglary 50 

Sect.  12.     Of  rape 51 

Sect.  13.     Of  the  office  of  coroners 52 

Sect.  14.     Of  the  Exchequer 62 

Sect.  15.     Of  in  ferif)r  courts 63 

Sect.  16.     Of  sheriffs  turns 65 

Sect.  17.     Of  views  of  frank  pledges 66 

Chap.  II.     Sect.    1.     Of  actions 73 

Sect.    2.     Of  judges 74 

Sect.    3.     Of  plaintiffs 75 

Sect.    4.     Of  rewards  and  fees 78 

Sect.    5.     Of  pleaders 79 

Sect.    6.     Of  attachments 81 

Sect.    7.     Of  appeals 83 

Sect.    8.     Of  process  of  exigent 85 

V 


VI 


CONTENTS. 


PAGE 

Chap.  II.     Sect,    9.     Of  gaol  and  gaolers 86 

Sect.  10.     Of  people  bailable  in  appeals 88 

Sect.  11.     Of  appeal  of  majesty 88 

Sect.  12.     Appeal  of  falsifying 90 

Sect.  13.     Of  appeals  of  treason 91 

Sect.  14,     Of  appeal  of  burning 93 

Sect.  15.     Of  the  appeal  of  murder 93 

Sect.  16.     Appeals  of  robbery  and  larceny   95 

Sect.  17.     Of  the  appeal  of  burglary 96 

Sect.  18.     Of  the  appeal  of  imprisonment 96 

Sect.  19.     Of  appeals  of  mayhem 97 

Sect.  20.     Of  appeal  of  wounding ■     97 

Sect.  21.     Of  appeal  of  rape 98 

Sect.  22.     Of  offences  real,  at  the  king's  suit 98 

Sect.  23.     Of  offences  personal  at  the  king's  suit 101 

Sect.  24.     Of  venial  trespasses  and  personal  suits 103 

Sect.  25.     Of  assize  and  novel  disseisin,  etc 106 

Sect.  26.     Of  distresses 113 

Sect.  27.     Of  contracts 118 

Sect.  28.     Of  villenage  and  niefty 122 

Sect.  29.     Of  summons 128 

Sect.  30.     Of  essoins 130 

Sect.  31.     Ofattornies 137 

Chap.  III.     Sect.  1 .    Of  exceptions 139 

Sect.    2.     Wiiat  exception  is 140 

Sect.    3.     Exceptions  of  dilatories 141 

Sect.    4.     Exception  of  clergy 142 

Sect.    5.     Replication  of  bigamy 143 

Sect.    6.     Exception  to  the  power  of  the  judge 144 

Sect.    7.     Exception  to  the  person  of  the  judge 146 

Sect.    8.     Exception  to  the  time 146 

Sect.    9.     Exception  to  the  plafce 147 

Sect.  10.     Exception  to  the  person 148 

Sect.  11.     Exception  of  the  person,  and  of  his  custody.   148 

Sect.  12.     Exception  of  summons 149 

Sect.  13.     Exception  of  vicious  counts 149 

Sect.  14.     Exception  to  approvers 152 

Sect.  15.     Exception  of  indictments 152 

Sect.  16.     An  answer  to  treason 154 


CONTENTS.  vii 

PAGE 

Chap.  III.     Sect.  IT.     Burning ],J5 

Sect.  18.     Of  niurtler 1.55 

Sect.  19.     Of  robbeiy  or  larceny Mfj 

Sect.  20.     Of  burglary ~. ].57 

Sect.  21.     Of  rape ]r,7 

Sect.  22.     Of  imprisonment 1,58 

Sect.  2:}.     Of  mayliem  and  wounding 1,58 

Sect.  24.     Juramentum  duelli 109 

Sect.  2.5.     Ordering  tbe  combatants 170 

Sect.  20.     Personal  trespass 171 

Sect.  27.     Of  ])uri)restures 173 

Sect.  28.     Of  treasure  found 173 

Sect.  29.     Of  wrecks  173 

Sect.  30,     Of  usury 174 

Sect.  31.     Of  hunting 174 

Sect.  32.     Of  obligation 175 

Sect.  33.     Of  attaint .    ...  175 

Sect.  34.     The  ordinance  of  attaint 176 

Sect.  35.     Of  o.-iths 178 

Sect.  36.     Of  homage 178 

Sect.  37.     Fealty  annexed  to  homage 179 

Sect.  38.     Of  common  oaths 179 

Sect.  39.     Of  final  accords 180 

Chap.  IV.     Sect.  1.     Of  judgment 183 

Sect.    2.     Tlie  ordinances  of  judgment  183 

Sect.    3.     Jurisdiction  to  declare  the  law 186 

Sect.    4.     Defaults  punishable 189 

Sect.    5.     Defaults 190 

Sect.    6.     Of  personal  actions 191 

Sect.    7.     Defaults  in  real  actions 192 

Sect.    8.     Of  actions  mixt 192 

Sect.    9.     Of  pledge  and  mainperner 193 

Sect.  10.     Defaults  after  summons 194 

Sect.  11.     Of  champion 106 

Sect.  12.     Of  punishments 199 

Sect.  13.     Of  infamous  persons 201 

Sect.  14.     Of  majesty 202 

Sect.  15.     Of  burning 203 

Sect.  16.     Of  murder 204 


viii  CONTENTS. 

PAGE 

Chap.  IV.     Sect.  17.     Of  punishments 213 

Sect.  18.     Of  false  judges 214 

Sect.  19.     Of  perjury 216 

Sect.  20.     Of  justices  in  Eyre 217 

Sect.  21.     Of  articles  in  Eyre 218 

Sect.  23.     Of  franchises 221 

Sect.  23.     Of  satisfaction  of  debt 222 

Sect.  24.     Cases  of  disseisin 222 

Sects.  25,  26.     Of  amercements  taxable 225 

Sect.  27.     Office  of  justices  in  Eyre 228 

Chap.  V.     Sect.  1.  Abusions  of  the  law 230 

Sect.  2.    Defects  of  the  great  charter 257 

Articles  stat.  Merton 265 

Sect.  3.     Stat.  Marlbridge 267 

Sect.  4.     Stat.  Westm.  1 , 269 

Sect,  5.     Stat.  Westm.  2 275 

Sect,  6.     Reprehensions    of    circumspecte    agatis    13 

Edw.  1 286 

Sect.  7.    New  statute  of  debt 237 

Diversity  of  Courts. 

Their  jurisdiction 291 

Of  the  court  of  Marshalsea 292 

Of  the  King's  Bench 293 

Of  the  Common  Pleas 296 

The  Chancery 298 

The  Exchequer 301 

The  Cinque  Ports 302 

Of  Court  Baron 305 

Appeals  of  mui'der 309 

Appeal  of  robbery 312 

Appeal  of  rape 318 

Appeal  of  mayhem 319 

Indictments 322 


IXTRODUCTIOX. 

By  William  C.  Robixsox^  LL.L)., 

(Whiteford  Professor  of  Common  Law  in  the  Catholic  University 

of  America.) 

AxDREW  HoKx,  the  reputed  author  or  compiler  of 
the  Mirror  of  Justices,  was  born  in  London,  in  Avhicli 
city,  in  the  year  A.  D.  132S,  he  also  died.  lie  Avas  by 
occupation  a  fishmonger,  and  in  this  calling  attained 
such  honorable  rank  among  his  fellow-merchants  that 
in  A.  D.  1320  he  was  elected  Chamberlain  of  London, 
and  held  that  office  by  annual  re-election  till  his  death. 
Being  a  man  of  ample  mcan'^  and  literary  tastes,  and 
having  no  immediate  family,  he  devoted  his  leisure  to 
anti(piarian  research,  and  by  his  will  bequeathed  to 
the  chamber  of  Guildhall  a  number  of  valuable  manu- 
scripts, among  which  were  a  comi")ilation  of  the  city 
laws  and  customs  called  the  Lihcr  Horn,  and  a  bonk  en- 
titled Speculum  — Justiciariorum,  or  Tlie  Mirro)-  of 
Justices. 

Of  the  latter  work  the  oldest  known  copy  is  that  pre- 
served in  the  library  of  Corpus  Christ!  College,  Cam- 

xi 


xii  INTRODUCTION. 

bridge,  and  this  by  some,  critics  has  been  snpposed  to 
have  been  prepared  by  Horn  himself,  or  by  a  clerk  writ- 
ing from  his  dictation.  This  copy  is  in  the  Xorman 
French,  and  forms  the  basis  of  the  translation  made  by 
Mr.  William  Joseph  Whittaker  and  published  in  A.  D. 
1895  by  the  Selden  Society  with  an  introduction  by 
Professor  Frederic  William  Maitland.  Another  an- 
cient copy  furnished  the  text  for  the  first  printed  edi- 
tion of  The  Mirror  in  A.  D.  164:2,  and  from  the  same 
or  possibly  another  copy  was  derived  the  translation 
published  by  Mr.  William  Hughes  in  A.  I).  1G16  and 
reproduced  in  A.  D.  1768  and  A.  D.  1840.  All  these 
copies  are  more  or  less  imperfect,  and  the  translators 
have  avowedly  supplied  missing  words  and  letters,  and 
given  to  the  doubtful  passages  of  the  text  such  inter- 
pretations as  in  their  judgment  most  nearly  represented 
the  meaning  of  the  author.  The  present  edition  con- 
tains the  translation  of  Hughes,  and  an  original  mono- 
graph by  him  on  the  Diversity  of  Courts  and  their  Juris- 
diction. 

The  principal  questions  raised  by  literary  and  legal 
critics  concerning  The  Mirror  relate  to  its  origin,  its 
character,  and  its  authority.  In  reference  to  its  origin 
an  almost  uniform  tradition  ascribes  its  production  in 
its  present  shape  to  the  pen  of  Andrew  Horn.  The 
arguments  against  this  tradition  advanced  by  recent 
writers  rest  upon  conclusions  drawn  by  them  from  the 
character  and  authority  of  the  work,  and  their  doubt 


INTRODUCTION.  xiii 

-whether  so  learned  and  conscientious  an  antiquarian 
as  Horn  could  have  composed  it.  These  arguments  are 
fully  set  forth  in  the  introduction  by  Professor  !Mait- 
land  to  Whittaker's  translation,  and  yet  such  is  the  force 
of  the  tradition  and  the  inability  to  impute  it  to  any 
other  author  that  even  he  inclines  to  credit  it  to  Horn, 
and  to  explain  his  doubts  by  the  suggestion  that  it  was 
■written  by  Horn  as  early  as  A.  D.  1290,  -when  its  au- 
thor was  still  a  young  man  new  to  legal  studies,  and  be- 
fore he  had  acquired  the  knowledge  and  the  caution 
which  made  his  later  works  so  valuable. 

Concerning  the  character  of  the  book  a  wider  differ- 
ence of  opinion  has  prevailed.  Many  critics  of  the  high- 
est authority  have  insisted  that  the  substance  of  The 
Mirror  is  older  than  the  Conquest,  and  that  the  work 
of  Horn  consisted  in  editing  the  ancient  matter  and 
adding  to  it  the  more  recent  laws  and  customs  down 
to  his  own  dav.  Others  have  resjarded  it  as  a  literarv 
imposture  Avhose  author  mingled  with  his  statements 
of  the  current  laws  of  the  reigns  of  Edward  1  and  Ed- 
ward II  a  multitude  of  groundless  fabrications  con- 
cerning ancient  ISTorman  and  Saxon  laws.  Still  others 
consider  the  entire  work  as  an  original  composition  of 
the  reputed  author,  compiled  from  documents  and  tra- 
ditions then  accessible  thouch  not  now  extant,  and 
bearing  substantially  the  same  relation  to  the  laws  of 
the  whole  kingdom  that  the  Liber  Horn  does  to  the  cus- 
toms and  ordinances  of  London. 


::iv 


INTRODUCTION, 


The  internal  evidence  afforded  by  the  book  itself  sup- 
ports this  last  more  moderate  and  reasonable  opinion. 
In  the  Preamble  the  author  asserts  that  with  the  assis- 
tance' of  certain  unnamed  companions  he  has  made  a 
study  of  tlie  laws  and  compiled  this  treatise  in  order 
to  set  before  the  judges  of  the  courts  the  true  doctrines 
of  the  Common  Law  according  to  the  ancient  and  still 
authoritative  usages,  and  thus  enable  them  to  avoid 
false  judgments  and  correct  the  daily  abuses  of  the  law 
into  which  their  ignorance  had  led  them;  for  which  rea- 
son he  had  called  this  l)ook  The  Mirror  of  Justices. 
This  assertion  seems  hardly  consistent  with  the  theory 
that  the  nucleus  of  the  book  was  an  older  work  of  the 
Saxon  period  bearing  the  title  "  Speculum  Justiciari- 


orum.'" 


Again,  in  the  beginning  of  the  first  chapter  the  author 
classifies  the  Avhole  body  of  the  law  of  his  time  into 
the  Canon  Law  which  regulates  ecclesiastical  affairs  and 
the  Common  Law  which  deals  with  temporal  rights  and 
wrongs,  and  then  states  that  this  book  is  a  summation 
of  the  usages  and  doctrines  of  the  Common  Law.  This 
statement  the  entire  structure  of  the  book  itself,  con- 
firms. It  nowhere  takes  the  form  of  an  original  text  to 
which  additions  have  been  made  or  in  which  comments 
are  inserted,  l)ut  treats  its  matter  subject  by  subject  as 
represented  in  the  current  laws  wdiether  of  older  or  of 
later  origin. 

Ao-ain,  in  the  third  section  of  the  first  chapter,  allud- 


INTRODUCTION.  xv 

ing  to  his  purpose  to  reform  abuses  by  giving  to  the 
judges  a  clear  statement  of  the  laws,  he  says  that 
from  the  time  of  Alfred  to  the  reign  of  Edward  I 
many  laws  had  been  made  by  different  kings  which  had 
not  been  put  into  writing  and  definitely  published, 
for  which  cause  they  were  not  sufficiently  known  and 
understood;  and  then  devoting  the  remainder  of  the 
section  to  the  recital  of  some  of  these  neglected  laws 
concludes  it  with  the  promise  to  recite  the  others  as 
his  work  proceeds.  From  this  point  to  the  end  of  the 
fourth  chapter  the  work  is  to  all  intents  a  handbook  of 
legal  rules,  made  up,  as  such  books  are  at  the  present 
day,  from  Avhatever  sources  appear  to  the  author  suffi- 
ciently reliable  and  expressing  the  law  in  terms  at  once 
succinct  and  easilv  intelligible.  Having  laid  his  founda- 
tion  by  this  brief  statement  of  the  laws  the  author  then 
exposes  the  judicial  errors  which  have  arisen  from  ig- 
norance of  them  or  from  their  nes'lect.  Of  abuses 
against  the  unwritten  laws  he  describes  one  hundred 
and  fifty-five,  propounding  each  in  a  short  and  vigor- 
ous sentence  as  a  matter  well  known  to  all  who  under- 
stood the  practical  administration  of  the  law.  Follow- 
ing these,  he  enumerates  various  defects  in  the  contents 
or  enforcement  of  Magna  Charta,  the  Statutes  of  Mer- 
ton  and  ^larlbridge,  the  first  and  second  Statutes  of 
Westminster,  and  other  Statutes  of  the  reign  of  Edward 
I.  In  these  assertions,  whether  of  the  laws  or  their 
abuses,  no  vestige  of  a  more  ancient  treatise  is  visible, 


xvi  INTRODUCTION. 

although  it  is  apparent  that  Avithoiit  the  aid  of  expe- 
rienced lawyers  so  formidable  and  detailed  an  indict- 
ment could  not  have  been  framed. 

Conceding  thus  to  Andrew  Horn  whatever  merit  the 
authorship  of  The  Mirror  as  an  independent  and  origi- 
nal treatise  may  involve,  we  approach  the  question 
whether  it  possesses  any  authority  either  as  an  exposi- 
tion or  a  history  of  the  law.  At  first  blush  it  might 
seem  as  if  the  foregoing  statement  of  its  character  and 
origin  precluded  any  controversy  upon  this  question, 
but  as  a  matter  of  fact  concerning  no  work  in  the  entire 
realm  of  legal  literature  have  more  opposite  and  extreme 
opinions  been  expressed.  As  early  as  A.  D.  1550,  in 
Togasse's  Case  (1  Plowden,  p  8)  Bradshawe,  Attor- 
ney-General, cited  it  as  an  authority  for  the  guidance 
of  the  court,  saving:  "  And  so  of  ancient  time  the  law 
of  this  realm  has  been  accordingly,  as  it  is  expressed  in 
the  book  called  The  Mirror  of  Justices  which  was  made 
before  the  Conquest."  Lord  Coke,  in  the  Prefaces 
to  his  ninth  and  tenth  volumes  of  Reports,  speaks 
of  it  as  follows :  "  I  have  a  very  ancient  and  learned 
Treatise  of  the  laws  and  usages  of  this  king- 
dom, whereby  this  realm  was  governed  about  eleven 
hundred  years  past."  "  In  this  Book  in  effect  appeareth 
the  whole  frame  of  the  ancient  Common  Laws  of  this 
realm."  "  So  as  in  this  Mirror  you  may  perfectly  and 
truly  discern  the  whole  body  of  the  Common  Laws  of 
England."      ''  In   this   ancient  Mirror  you  may   also 


INTRODUCTION.  xvii 

clciirlv  discern,  as  fur  as  the  reign  of  the  often-named 
King  Artlmr,  the  great  antiquity  of  the  ofScers  and  min- 
isters of  the  Common  Law,"  "  The  most  of  it  was  writ- 
ten long  before  the  Conquest  as  by  the  same  appeareth, 
and  yet  many  things  were  added  thereunto  by  Horn,  a 
learned  and  discreet  man  (as  it  is  supposed)  in  the  reigu 
of  Edward  I."  Lord  Chief  Justice  Tindal  in  re  Ser- 
jeants at  Law,  A.  D.  1840  (6  Bingham,  X.  C,  p  187), 
thus  classes  it  with  Bracton  and  the  public  records  as 
evidence  of  the  ancient  law:  "  That  the  antiquity  of  the 
state,  degree  and  office  of  a  serjeant  at  law  is  as  high  at 
the  least  as  the  existence  of  the  court  itself  is  evident 
from  all  the  text-writers  and  records  which  bear  upon 
the  point.  The  Serjeants  are  mentioned  in  the  ]\Iirror  of 
Justices,  a  book  of  great  authority  and  of  the  earliest, 
though  uncertain,  date ;  by  Bracton  who  wrote  in  the 
time  of  Henry  III ;  and  in  records  which  are  to  be 
found  in  the  Tower  in  the  time  of  Edward  I."  Beeve, 
the  cautious  and  laborious  historian  of  English  Law, 
regards  The  Mirror  with  less  confidence  as  an  exact 
representation  of  ancient  laws,  but  characterizes  it  as 
"  a  curious,  interesting,  and  in  some  degree  an  authen- 
tic tract  upon  our  old  law."  Finlason,  in  an  extended 
note  to  Beeve,  speaking  of  the  disclosures  of  The  Mir- 
ror concerning  the  Saxon  age,  says  that  "  of  the  legal 
history  of  that  age,  and  of  the  whole  intervening  period 
up  to  the  present  (Edward  II)  reign,  it  affords  the  most 
valuable  illustrations.    And  this  because  from  its  nature 


Xviii  INTRODUCTION. 

and  character  it  is  essentially  historical,  professing  to 
have  heen  based  upon  memorials  of  the  age  of  Alfred, 
and  to  have  embodied  all  the  changes  of  the  subsequent 
period,  and  ■proving  that  it  was  so  by  many  internal  evi- 
•dences  of  the  most  certain  character.  ...  On  the 
ivhole,  there  is  no  book  on  the  law  of  greater  use  and 
Talue  to  a  legal  historian,  as  illustrative  of  our  legal  his- 
tory and  especially  of  the  transition  from  the  Saxon 
to  the  Norman  age  and  the  long  period  between  the 
age  of  Alfred  and  the  age  of  Edward." 

Against  this  arrav  of  leaal  authorities  several  dis- 
tinguished  scholars,  most  of  them  rather  historians  and 
antiquarians  than  lawyers,  have  pronounced  a  contrary 
opinion.     Sir  Francis  Palgrave  in  his  "  English  Com- 
monwealth "    rejects    it    "  as   evidence   concerning   the 
early  jurisprudence  of  Anglo-Saxon  England,"  although 
admitting  it  to  be  '^  a  very  curious  specimen  of  the 
apocrypha  of  the  law."    Pollock  and  Maitland,  in  their 
History  of  English  Law  dismiss  it  from  consideration 
with  the  remark:  "Once  for  all  we  say  that  of  the 
Mirror  of  Justices  we  shall  take  no  notice.     Its  account 
of  criminal  law  is  so  full  of  fables  and  falsehoods  that 
as  an  authority  it  is  worthless."    Professor  Maitland,  in 
his  introduction  to  the  edition  published  by  the  Selden 
Societv,  even  appears  to  take  the  view  that  the  Mirror 
was  a  deliberate  attempt  to  misrepresent  rather  than, 
truly  represent  the  ancient  laws. 

Into  this  controversy  it  is  not  the  purpose  of  the  pres- 


INTRODUCTION.  xix 

€nt  editor  to  enter.  No  data  -vvhicli  could  throw  light 
on  this  question  are  now  accessible  that  have  not  al- 
ready been  examined  and  discussed  by  abler  critics  than 
himself.  In  the  imperfect  condition  of  the  manuscripts 
from  which  the  current  translations  have  been  made, 
and  in  the  possible  departures  from  the  original  which 
may  exist  in  them  even  where  tliev  seem  to  be  most 
perfect,  adverse  criticism  based  on  verbal  inconsisten- 
cies with  other  ancient  documents  loses  much  of  its 
convincing  force,  and  may  be  fully  overcome  should 
other  manuscripts  hereafter  be  discovered.  Meanwhile 
it  seems  incredible  that  Andrew  Horn,  the  "  learned 
archivist  and  antiquarian,"  the  author  of  the  Liber 
Horn,  the  incumbent  of  one  of  the  most  important  offices 
in  England,  should  have  solemnly  bequeathed  to  the 
great  merchant-guild  of  London  a  book  which  he  did 
not  know  to  be  worthy  of  his  gift  and  their  acceptance ; 
or  that  the  author  of  The  Mirror,  be  he  Horn  or  an- 
other, should  have  made  so  violent  and  specific  an  at- 
tack upon  the  English  Bench  of  his  own  day  unless  his 
statements  of  the  law  and  of  its  violations  were  in  har- 
mony with  the  traditions  and  experiences  of  the  people 
to  whom  it  was  addressed. 

\Vashi>gtox,  June  19C3. 


THE  TRA^^SLATOR  TO  THE  READER. 

Courteous  Reader: 

It  hath  ever  been  an  Objection  (grounded  upon  Igno- 
rance,) which  hath  been  made  by  the  meaner  sort  of  the 
people  to  traduce  the  common  laws  of  England,  and  to 
bring  the  professors  thereof  into  contempt,  to  give  out 
speeches,  and  cast  it  in  the  teeth  (as  it  were)  of  tliem, 
that  the  said  laws  are  built  ])ut  upon  a  sandy  founda- 
tion, viz.  the  conceits  of  a  few  men,  and  that  they  are 
not  grounded  upon  the  laws  of  God,  from  which  all 
laws  of  men  ought  to  flow,  as  from  a  clear  and  pure 
fountain. 

This  vulgar  conceit  and  objection  hath  been  princi- 
pally nourished  amongst  them,  because  the  common  laws 
have  been  kept  from  their  view  and  understandings, 
being  for  the  most  part  published  in  the  French  tongue. 

I  must  inffenuouslv  confess,  that  since  it  is  a  received 
maxim  amongst  us,  that  ignorance  of  the  law  doth  ex- 
cuse no  man,  that  it  were  good  that  the  fundamental 
laws  were  published  in  our  mother  tongue,  that  so  no 
person  might  be  misconusant  thereof.     And  I  have  ob- 


2  THE  TRANSLATOR 

served,  that  it  hath  been  the  course  and  care  of  most  of 
the  late  publishers  of  our  laws,  to  put  them  forth  in 
such  language  as  the  common  people  might  the  better 
know  them,  and  practise  the  due  observation  of  them. 
But  that  I  may  with  the  more  ease  and  plainness  answer 
the  frivolous  objection,  remove  that  fond  conceit  of  the 
ignorant,  vindicate  our  common  laws  from  so  foul  an 
aspersion,  and  let  the  objectors  see  from  whence  our 
laws  deduce  their  original  (though  the  learned  author 
in  the  ensuing  treatise  hath  in  ])art  done  it)  ;  yet  for 
the  clear  manifestation  thereof  I  shall  intreat  the  cour- 
teous reader  to  be  pleased  favourably  to  accept  of  this 
short  breviary  of  the  grounds  and  originals  of  the  com- 
mon law,  which  I  shall  apply  only  as  an  introduction  to 
the  work  which  followeth. 

All  laws  are  comprehended  under  a  three-fold  divis- 
ion: 1.  The  law  of  nature.  2.  The  law  of  Gnd,  of 
faith,  or  of  the  gospel.  3.  The  law  of  man,  made  upon 
the  dictates  of  reason ;  ujwn  all  which  laws  the  common 
laws  of  England  are  built,  as  upon  firm  and  sure 
foundations. 

The  first  is,  that  which  is  called  the  law  of  nature, 
which  is  ordained  of  God,  and  may  be  called  God's  law, 
united  unto  man's  nature;  for  what  was  that  image  of 
God  in  man,  consisting  of  righteousness,  holiness  and 
truth  ;  but  lex  primordialis,  a  primordial  law  exactly 
requiring,  and  absolutely  enabling  the  performance  of 
duties  of  piety  unto  God,  and  of  equity  to  men  both  in 


TO  THE  IJEADKR.  3 

lial)it  and  art.  "  A  nil  qua  scripta  suit  lex  in  Jiominuni 
meniibus,  et  vigebat.  God  in  the  beginning  wrote  his 
laws  in  men's  hearts,  and  therefore  according  unto  the 
opinion  of  most  learned  Divines  and  Legists:  Lex  na- 
tunv  nihil  aliud  est  quam  participatio  legis  ceternoe  in 
ratiunali  creatura;  and  according  to  others,  Lex  na- 
iurce  est  lumen  ac  dictamen  illud  rationis,  quo  inter 
bonum  et  malum  discernim,us.  The  most  principal 
precepts  of  the  law  of  nature  (which  are  also  maxims 
and  grounds  of  the  laws  of  England)  are  1.  Deum  vene- 
rara.  2.  Honeste  vivere.  3.  Patrice  magistratibus, 
et  parentibus  obedire.  4.  Alteri  ne  facias  quod  tibi 
non  vis  fieri.  5.  Suum  suique  tribure.  6.  Tollere  no- 
centes  e  medio  propter  serrandam  publicam  salutem.  7. 
Rerum  dominia,  proprietates,  possessioties,  et  usum 
distinguere ;  To  honour  God,  to  live  honestly,  to  obey 
magistrates,  etc.,  to  do  as  we  would  be  done  unto,  to 
render  every  one  his  due,  to  ])nnish  the  guiltv  f(ir  the 
preservation  of  the  public,  to  distingnish  and  settle  the 
dominion,  propriety,  possession,  and  use  of  temporal 
things. 

These  fundamentals  of  the  law  of  nature  are  not 
principally  acquired  or  obtained  by  art.  or  doctrine,  but 
naturally  ingrafted.  Learning  and  instruction  serve 
onlv  to  bring  forth  and  increase  those  natural  seeds; 
but  ncitlior  learning  nor  instruction  do  princijjally  and 
oriiiinallv  give  iheui ;  tliov  are  (saith  Socrates)  but  as 

*  St.  Ambrose. 


4  THE  TRANSLATOR 

skilful  midwives,  whose  office  it  is  only  to  further  the 
birth  of  the  child,  not  to  beget  the  child. 

The  second  is  the  law  of  God,  the  law  of  faith,  or  of 
the  Gospel ;  which  may  well  be  called  lex  amoris,  the  law 
of  love.      Is  not  this  nation   Christian  ?     Hath  it  not 
professed  the  common  faith  for  1200  years?     Do  not 
our  laws  all  tend  to  the  maintaining  of  peace,  concord 
and  love,  fruits  of  the  gospel?     Are  not  all  statutes, 
acts  of  parliament,   constitutions,   customs,   made   and 
used  for  the  government  of  this  people,  founded  upon 
such  principles?     Let  the  objectors  cite  me  any  law  in 
use  now  amongst  us,  which  is  not  warranted  by  some 
express  gospel  text,  either  in  the  letter,  or  not  by  neces- 
sary consequence  drawn  from  it ;  sure  I  am  that  every 
law,  custom,  usage,  privilege  prescription,  act  of  parlia- 
ment, or  prerogative,  which  doth  exalt  itself  above  or 
beyond  the  law  of  God,  the  law  of  Christ,  or  the  law  of 
nature,  hath  ever  by  the  worthy  sages  of  our  laws  been 
declared  to  be  void ;  it  were  to  no  purpose  to  instance 
upon  particulars,  it  is  sufficient  to  say,  that  as  it  apper- 
taineth  to  all  godly  and  Christian  men  to  observe  and 
keep  this  law ;  so  to  let  all  men  know,  that  we  are  in- 
structed   by    the    worthy    professors    of    the    gospel    of 
Christ,  in  the  fundamental  rules  and  grounds  of  this 
law,  to  live  after  it,   and  to  direct  all  our  words  and 
actions  according  to  it,  and  by  it ;  and  therefore  I  shall 
not  say  more  of  it. 

The  third  the  laws  of  men,  and  the  municipal  laws 


TO  THE  READER.  5 

of  this  realm,  which  although  they  may  seem  to  some 
to  have  their  progeny  from  men,  (for  as  Solon  to  the 
Athenians,  Lycurgus  to  the  Laccdoemonians,  Numa 
PompHkis,  and  Actius  Claudius  to  the  Romans,  were 
accounted  the  i)riucii)al  aulhors  and  givers  of  law  to 
those  several  nations;  so  Alurcd  or  Alfred,  Atliclstone, 
Edmundus,  Edgar,  Canutus,  Edward  the  Confessor, 
WlUiam  the  first,  and  Henry  the  first,  called  Beaurlark, 
noble  and  famous  Princes  of  this  nation,  part  oi  all 
whose  laws  are  yet  in  force,  were  the  chief  promulgers 
of  many  necessary  and  good  laws  yet  in  use  with  us  in 
this  realm)  ;  yet  if  wc  look  into  their  laws  we  shall 
find,  that  most  of  thcni  have  their  rise  from  a  higher 
power,  from  the  law  of  God,  and  the  hnv  of  faith.  It 
is  true,  that  some  Historiographers  *  have  written,  that 
the  original  of  the  common  laws  now  in  use,  flowed 
first  out  of  Normandy.  I  shall  decline  that  as  to  the 
generality;  but  as  Cicero  was  bold  to  derive  the  pedi- 
gree of  his  Roman  law  from  the  great  God  Jupiter,  so 
I  hope  without  offence  I  may  be  emboldened  in  the  i>er- 
son  of  our  common  law,  to  say.  That  when  the  laws  of 
God  and  Reason  came  first  into  England  then  came 
I  in. 

The  temporal  laws  of  this  kingdom  may  be  divided 
into  three  parts.  1.  The  general  or  common  law.  2. 
The  customary  law.    3.   Statute  or  parliament  laws;  the 

*  Dan.  Hist,  in  tit.  Will.  Conq.  Cicero  1.  \.  de  legibus. 


Q  THE  TRANSLATOR 

end  of  all  which  are,  id  sopiantur  jurgia,  et  vitia  pro- 
pulsentur,  et  ut  in  regno  conservetur  pax  et  justitia. 

The  common  law  is  nothing  else  but  pure  and  tried 
reason  (responsa  prudentum)  allowed  and  known,  con- 
taining the  principles  and  maxims  of  law  (consonant 
unto  the  laws  of  God)  with  a  certain  method  for  the 
orderly  proceeding  therein;  the  rest  consisting  in  the 
minds  of  the  sages  of  the  law,  ready  by  argument  to 
approve  what  is  truth,  and  under-propt  with  authorities 
to  condemn  what  is  false. 

The  customary  laws  are  certain  ancient  customs 
grounded  upon  reason,  which  abridge  the  course  of 
the  common  law.  The  diversity  of  customs  have 
grown  by  reason  of  several  nations  who  have 
had  government  over  this  kingdom ;  as  1.  The 
Britains.  2.  The  Romans.  3.  The  Britains  again. 
4.  The  Saxons.  5.  The  Danes,  and  lastly  the  Nor- 
mans: all  which  sorts  of  people  have  left  behind  them 
within  this  realm  part  of  their  language,  and  part  of 
their  country  usages. 

The  customs  within  the  realm  are  called  by  several 
names : 


As^ 


Customs. 
Prescriptions. 
Usages. 
[  By-Laws. 


Customs   extend   properly   to   countries,    cities,    bor- 


TO  THE  READER.  7 

oug'hs,  to^vns  corporate,  and  large  signiorics.  2.  Pre- 
scriptions run  with  persons  who  have  capacities  to  have 
interests  and  properties.  3.  Usages  refer  to  places  or 
towns  not  incorjjorate,  as  to  inhabitants  and  the  like. 
4.  By-laws  are  properly  made  in  courts  by  the  tenants 
of  the  manor  or  precinct,  or  out  of  courts,  with  a  com- 
mon consent  for  good  order  and  neighbourly  usage. 
The  efficient  causes  of  good  and  lawful  customs  are, 
reason  and  time,  the  one  begetting,  the  other  bringing 
forth  and  continuing  the  same;  in  one  place  Master 
Lit,  saith,  this  is  a  good  custom,  because  it  stands  Avith 
some  reason ;  in  another,  this  is  a  void  custom  because 
it  is  aaainst  reason. 

3.  The  last  is  statute  or  parliament  laws;  Parlia- 
ments have  been  ancient,  they  were  in  the  time  of  the 
Saxons,  long  before  the  Norman  conquest,  (for  as  the 
proverb  is)  in  the  time  of  the  Danes,  the  laws  lay  then 
in  water,  the  people  were  governed  rather  by  princes 
wills  than  public  laws;  for  then  (as  one  saith)  Sepu^- 
tum  suit  jus  in  regno,  leges  et  consuetudines  simul 
sopitce,  teniporihus  Ulorum  prava  voluntas,  vis  et  vio- 
lentia  magis  regnahant,  quam  judicium  in  terra.  And 
although  in  the  Saxons  time  I  find  the  usual  words  of 
the  acts  then  to  have  been,  edictum,  constitutio,  little 
mention  being  made  of  the  commons,  vet  I  further  find 
that,  tuni  demum  leges  vim  et  vigorem  hahuerunt, 
cum  fuerunt  non  modo  institutce  sed  firmatce  approba- 
tione  communitatis. 


8  THE  TRANSLATOR 

Our  authpr  and  others  tell  us,  that  the  administration 
of  justice  was  only  originally  in  the  crown,  and  kings 
in  their  o^^ti  persons  rode  circuit  every  seven  years 
through  the  realm,  to  hear  the  complaints  of  their  peo- 
ple, and  to  redress  public  grievances.  But  after  the 
division  of  the  realm  into  shires,  public  courts  were 
erected ;  as  the  county  court,  sheriffs  turns,  himdred 
court,  court  leets,  views  of  frankpledges,  and  court 
barons,  for  the  conservation  of  the  king's  peace,  and  the 
hearing  and  determining  of  all  differences,  debts,  con- 
tracts, etc.,  which  might  arise  betwixt  party  and  party; 
and  all  persons  were  sorted  into  companies  or  societies, 
wherein  ten  of  the  principal  men  called,  capitales  plegii, 
or  franci  plegii,  because  they  were  freemen,  stood  as 
sureties  for  the  residue,  that  they  should  stand  to  jus- 
tice, and  not  fly  from  it  when  they  had  committed  any 
offence ;  the  law  of  Saint  Edward  is  most  excellent  to 
that  purpose  in  these  words ;  Est  quwdam  summa  et 
maxima  securitas  qua  omnes  statu  firmissimo  sustinen- 
tur,  viz.  lit  unusquisque  stabiliat  se  sub  fidejussionis 
securitate,  (quod  Angli  vacant  friburgher ;)  licec  securi- 
tas hoc  modo.  fiebat,  quod  de  omnibus  villis  totius  Rcgni 
sub  fidejussione  decennaU  debeant  esse  univcrsi:  and 
to  that  purpose  also  is  the  ordinance  of  king  Alured: 
Decrevit  Aluredus  ut  liberce  conditionis  quisquc  in  cen- 
turiam  ascriberetur  aliquam,  atque  in  decemvirale  con- 
jiceretur  collegium;  the  difference  only  consisting  in 


TO  THE  READER.  9 

this,  that  king  Alured's  law  extended  but  to  freemen, 
Saint  Edward's  to  all  men. 

This  decennalis  fldejussio,  or  decemvirale  collegium, 
by  our  author  is  called  the  decennery,  who  were  charged 
to  bring  forth  the  person  of  every  offender  to  answer 
unto  the  law;  whereof  Mr.  Bracton  speaketh  in  these 
words:  De  eo  autem  qui  fugam  fecerit  (he  speaketh 
of  one  after  a  felony  committed)  diligenter  erit  in- 
quirendum si  fuerit  in  franciplegio  et  dccenna,  et 
tunc  erit  decenna  in  m^isericordia  coram  justiciariis 
quia  non  liahent  ipsum,  malefactorem  ad  rectum.  And 
according  to  that  law,  if  a  felon  after  his  flying,  or  con- 
viction, were  possessed  of  goods,  the  town  or  decennary 
was  answerable  for  the  same.  And  if  the  same  were 
imbezzled,  or  holden  from  them,  the  decennary  might 
seize  those  goods  in  whose  possession  soever  they  were 
found;  as  appoareth  by  3  E.  3.  Itin.  Xorth,  Fitz. 
Coron.  366.  Quod  vicecomes  et  decennarii  seisire 
possunt  cattaUa  felonum  in  manus  domini  Regis;  et 
vie.  cattalla  ilia  deliherahit  villas  ad  respondend.  Rcgi 
in  itinere,  quod  si  vie.  nee  decennarii  seisierint  villa 
respondehit  dom.  regi  in  itinere;  but  this  law  hath  been 
since  altered  by  the  statute  of  3  E.  3. 

I  have,  Courteous  Reader,  stood  the  longer  upon 
these  things,  as  well  to  vindicate  the  common  laws  from 
those  weak  cavils  of  the  ruder  sort,  as  to  demonstrate 
the  care  our  ancient  kings  and  counsels  have  had  for  the 
peaceable  Government  of  the  people  of  the  land,  accord- 


10  THE  TRANSLATOR 

ing  to  the  right  rules  of  justice,  deduced  from  the  law 
of  nature,  of  God,  and  of  right  reason ;  and  I  wish  that 
Princes  in  this  age  Avould  consider  and  put  in  practice, 
that  golden  rule  of  Demosthenes;  Bene  guhernare,  rede 
judicare,  juste  facere;  so  should  their  kingdoms  flour- 
ish, and  they  themselves  be  in  high  estimation  in  the 
eyes  of  all  their  people. 

In  these  distracted  times,  wherein  the  fundamental 
laws,  and  liberties  of  the  subject  have  been  by  a  malig- 
nant party  so  much  opposed,  I  have  oifered  this  treatise, 
intitled.  The  Mirrour  of  Justices;  I  have  translated 
the  same  out  of  the  French  tongue  into  English:  in  this 
book  many  of  those  fundamental  laws  so  much  of  late 
called  uix)n,  are  to  be  found  (though  I  do  not  warrant 
all  in  this  book  to  be  law  at  this  day :  many  of  the  laws 
being  obsolete,  and  altered  by  acts  of  parliaments  and 
common  usages)  it  hath  been  some  difficulty  for  me 
to  finish  it:  and  although  that  the  manuscript  copy  be 
in  the  original  very  imperfect;  the  French  impression 
by  mis-joining  of  words  in  many  places  without  sense, 
and  false  printed ;  the  terms  of  law  therein  for  the  most 
part  obsolete  and  worn  out;  yet  have  I  endeavoured,  (as 
all  translators  of  books,  especially  of  books  of  the  law, 
ought)  to  keep  myself  close  to  the  words  and  meaning 
of  the  author,  and  of  the  law  then  in  use  and  practice, 
well  knowing,  that  laws  many  times  have  their  inter- 
pretation according  to  the  strict  letter,  and  not  accord- 


TO  THE  READER 


n 


ing  to  sueli  flourishes  of  rlieturic  and  oratory  as  may 
be  put  \\\Mm  tluMR. 

1  entreat  thee,  Courteous  Reader,  to  accept  of  it  as 
it  is;  if  thou  find  find  any  errors  in  the  translation  (as  I 
suppose  thou  mayest  do  many)  t(j  pass  them  over,  or 
amend  them  :  if  thou  find  any  thing  in  the  work  itself 
which  may  advance  the  common  laws,  or  tlie  liberties 
of  the  subject,  or  set  forth  the  true  })rerogative  of 
Kings,  to  weigh  them  in  the  balance  of  justice:  if  thou 
find  any  thing  therein  not  fit  to  Ik'  publishc(l  in  these 
days  of  distraction  betwixt  the  king  and  peo- 
ple, consider  that  this  work  was  written  in  the 
time  of  king  Edward  the  first :  consider  again,  it  is  not 
mine,  but  the  author's;  who  for  his  antiquity  and  learn- 
ing in  the  laws  of  the  realm  then  in  use,  hath  found  the 
favour  and  honour  to  be  cited  by  many  of  the  grave 
sages  of  our  public  laws;  so  I  commend  it  to  thy  favour- 
able acceptance,  and  bid  thee  farewell : 

Thy  friend,  who  in  his  desires  strives  that  the  com- 
mon laws  of  the  land  may  now  and  for  ever  flour- 
ish. W.  H. 


THE  PREAMBLE. 

When  I  perceived  divers  of  those,  who  should  govern 
the  law  by  rules  of  justice,  to  have  a  respect  to  their  own 
earthly  profit,   and  chiefly  to  please  lords,   and  their 
friends,  and  to  have  a  respect  thereunto,  and  not  to  give 
their  consents,  that  the  right  usages  should  be  ever  put 
in  writing,  whereby  power  might  be  taken  from  them 
to  pervert  judgment,  and  others  to  banish  or  disinherit, 
without  punishment  for  the   same;   covering  their  of- 
fences by  the  exceptions  of  error  and  ignorance,  never 
or  little  regarding  the  Souls  of  offenders  condemned  by 
their  judgments,   as  their  duties  and  places  required; 
having  used  to  judge  the  people  according  to  their  own 
heads  by  abusions,  and  by  the  examples  of  others,  erring 
in  the  law,  rather  than  by  the  rules  of  the  Holy  Scrip- 
ture, greatly  to  have  erred  from  the  true  understanding 
thereof,  building  without  any  foundation,  and  to  judge 
and  have   cognizance,    and   jurisdiction   in   that  which 
thev  little  understood,  both  in  the  law  of  the  land,  and 
of  the  law  of  the  persons;  as  it  is  of  those  who  take 
upon  them  Art  to  pronounce  false  judgments,  and  by 
their  executions,  falsely  to  prevent  the  privileges  of  the 
King,  and  the  ancient  rolls  of  his  treasure.     Taking  the 
same  into  my  serious  consideration,  and  the  foundation 

12 


THE  PREAMBLE. 


13 


.and  original  of  the  usages  of  England  given  by  the 

law,  together  with  the  rewards  of  good  judges,  and  the 

punishments  of  others;  I  thought  it  needful  (wherein 

my  companions  gave  me  their  assistance)  to  study  the 

Old  and  I^ew  Testament ;  and  therein  we  found,  that 

the  law  is  nothing  else  but  rules,  delivered  \)y  our  huly 

predecessors  in  the  Holy  Scriptures,  for  the  saving  of 

souls  from  perpetual  damnation,  notwithstanding  that 

the  same  were  disused  by  false  judges.      And  we  found 

that  the  Holy  Scripture  remained  in  the  Old  and  Xew 

Testament. 

r  The  Law. 
Tlie  Old  Testament  J    rr^,       r^        ,     , 

contained  Three  Orders    )    ^  »«'  ^  rophets. 

I  The  Hagiographies. 

Genesis. 
Exodus. 
■{  Leviticus. 
Xumbers. 
Deuteronomy. 

Josua. 

Judges.  • 

1  2  Samuel,  called  1  and  2 

book  of  Kings. 
The  1  and  2  book  of  Kinas, 


In  the  Law  there  are 
five  volumes. 


In  the  order  of  the  prophets  , 
are  eight  vohimes. 


called  3  and  4  book  of 
Kings.  "H^ 

Isaiah. 

Jeremiah — Ezekiel. 

The  books  of  the  12  small 
prophets. 


u 


THE  PREAMBLE. 


Job. 

The  Psplms. 
Proverbs  of  Solomon. 
j     Ecclesiastes. 
In  the^order  of  Hagiogra-  ^     The   Song  of  Solomon. 

Daniel. 

Paralipomenon. 
Esdras. 
Hester. 


phie  are 


And  besides  these  there  are  books  in  the  old  Testa- 
ment although  they  are 


Not  authorized  Canonical.       i 


r    Tobie. 

Jiidcth. 
I     Maccabees. 
[    Ecclesiasticus. 


The    New    Testament   con- 
tains three  books. 


'    The  Evangelists. 
The  Apostles. 
The  holv  Fathers. 


f  The  Epistles  of  St.   Paul 

The    Evangelists    contain     '  The  Epistles  of  the  Canon, 

four  volumes.  j  The  Revelation. 

I  The  Acts  of  the  Apostles. 


The  writings  of  the  apostles  contain  four  vohimes. 


Of  the  writings  of  the  fathers  there  is  no  certain  mat- 
ter agreed  npon. 


THE  PREAMBLE.  15 

And  we  find  that  onr  laws  were  agreeing  to  scriptures, 
and  that  they  were  in  a  language  best  known  both  for 
the  help  of  us  and  the  common  people. 

And  for  tlie  condemning  of  false  judges,  I  compiled 
this  little  book  of  the  law  of  persons  into  five  chapters, 
that  is  to  sav, 

1.  Of  offences  against  the  peace. 

2.  Of  actions. 

3.  Of  exceptions. 

4.  Of  judgments. 

5.  Of  abusions. 

Which  book  I  have  called  The  Mirronr  of  Justices, 
according  as  I  have  found  their  virtues,  and  the  most 
excellent  substance  after  the  time  of  king  Arthur,  used 
by  holy  usages  according  to  the  rules  aforesaid;  and  I 
desire  you  that  you  would  amend  the  defects  thereof, 
according  to  such  lawful  and  true  warrants  as  you  prove 
both  to  learn  the  truth,  and  confound  the  daily  abuses 
of  the  law. 


THE  CONTENTS  OF  THE  FIRST  CHAPTER. 


Section  Page 

Of  the  original  of  the  law i  18 

Of  the  coming  of  the  English  into  this  land ii  19 

Of  the  first  constitutions iii  21 

Of  offences,  and  their  division iv  30 

Of  the  crime  of  majesty v  30 

Of  falsifying vi  37 

Of  treason vii  39 

Of  burning viii  40 

Of  murder ix  41 

Of  larceny x  45 

Of  burglary xi  50 

Of  rape xii  51 

Of  tlie  office  of  the  coroner xiii  52 

Of  tlie  Exchequer xiv  62 

Of  inferior  courts xv  63 

Of  the  turns  of  the  Sheriffs xvi  65 

Of  views  of  frankpledges xvii  66 


16 


CHAPTER   I. 

Sect.   1. 

of  the  offences  against  the  peace. 

Of  the  original  of  the  laiv. 

Almighty  God  shewed  more  love  to  man  than  to  any 
other  creature ;  when  he  made  him  after  his  own  image, 
and  gave  him  understanding ;  considering  that  he  stood 
continually  ready  to  fall  into  sin  by  three  manner  of 
adversaries,  and  therefore  he  gave  the  law  to  force  and 
drive  sinners  to  salvation  by  earthly  punishments ;  that 
for  the  pure  love  of  God  men  would  abstain  from  sin, 
and  thereof  made  Moses  their  teacher,  which  place 
the  Pope  now  holdeth. 

That  law  by  ordinance  of  our  holy  predecessors  is 
divided  into  two  volumes ;  into  the  canon  law,  which 
consisteth  in  the  amendment  of  spiritual  offences ;  first, 
by  admonition,  prayers,  reproofs,  excommunication ; 
secondly,  into  the  written  law,  which  consisteth  in  the 
punishing  of  temporal  offences,  by  summons,  attach- 
ments, and  punishments  or  penalties. 

Of  the  spiritual  law,  the  prelates  judged;  dtkI  lay 
2  IT 


18  OF  THE  COMING  OF  THE  ENGLISH     [Ch.  I.,  So.  2. 

princes  of  the  other  law:  the  law  whereof  this  sum  is 
made,  is  the  written  law  of  the  antient  usages  warranted 
by  the  holy  scripture.  And  because  it  is  given  to  all  in 
general,  it  is  called  the  Common  Law.  And  because 
there  was  no  other  law  but  that,  were  general  counsels 
and  parliaments  in  use,  and  that  direvsly  in  several 
places,  according  to  the  qualities  of  the  people  of  divers 
countries,  and  boroughs ;  they  were,  according  to  antient 
privileges,  changed  for  the  ease  of  the  people  of  those 
places. 

All  our  usages  and  laws  are  also  laid  for  the  keeping 
and  exaltation  of  the  peace  of  God ;  and  therefore  it  is- 
to  be  known,  that  the  people  are  not  to  be  adjudged  by 
similitudes  and  examples  not  canonized,  but  by  the 
love  of  peace,  of  chastity,  of  temperance,  of  charity,  of 
mercy,  and  of  good  Works. 


Sect.  2. 

Of  the  coming  of  the  English  into  this  realm. 

After  that  God  brought  down  low  the  nobility  of  the 
Britons,  who  used  more  force  than  right,  he  delivered 
the  realm  to  the  most  humble  and  simple  of  all  the 
countries  adjoining ;  that  is  to  say,  to  the  Saxons,  who 
from  the  parts  of  Almaine  became  conquerors  thereof, 
of  which  nation  there  were  forty  sovereigns  who  were 


Ch.  I.  Sc.  2.]  INTO  THIS  REALM.  19 

companions.  These  princes  called  this  land  (England) 
which  before  was  called  Great  Britain,  or  Britama 
Major.  These  princes  after  great  wars,  tribulations, 
and  troubles,  suffered  for  a  long  time,  chose  themselves 
one  king  to  reign  over  them,  to  govern  God's  people,  and 
to  maintain  and  defend  their  persons  and  their  goods 
in  peace  by  rules  of  law.  And  at  the  beginning  they 
made  the  king  to  swear,  that  he  should  maintain  the 
christian  faith  with  all  his  power,  and  govern  his  peo- 
ple by  law,  without  having  regard  to  the  person  of  any 
one;  and  that  he  should  be  obedient  to  suffer  right  as 
well  as  his  other  people  should  be. 

And  afterwards  this  realm  was  divided  in  inheri- 
tances according  to  the  number  of  those  companions 
who  then  remained  in  the  realm,  into  parts,  by  shires, 
and  every  one  had  a  shire  delivered  unto  him  to  keep 
and  defend  against  the  enemies,  according  to  every  one's 
estate  ;  that  is  to  say. 

Barhsli  ire  Gloucestersh  ire 

Bedfordshire  Cambridgesh  ire 

Buckinghamshire  Herefordshire 

Cormvall  Hertfordshire 

Chestershire  Huntingtonshire 

Cumberland  Kent 

Dorset  Lancashire 

Devonshire  Leicestershire 

Derbyshire  Lincolnshire 


20       THE  COMING  OF  THE  ENGLISH,  ETC.     [Ch.  I.,  Sc.  2. 

Essex  London 

EverwicJcshire  Middlesex 

Yorkshire  Surry 

Norfolk  Shropshire 

Northamptonshire  Somersetshire 

Northumberland  Southaynpton 

Nottinghamshire  Staff  ordsh  ire 

Oxfordshire  Westmo7^e  land 

Rutlandshire  Wiltshire 

Suffolk  Worcestershire. 

And  although  that  the  king  ought  not  to  have  any 
peer  in  the  land;  nevertheless  because  that  the  king  of 
his  own  Avrong  if  he  offend  against  any  of  his  people, 
nor  none  of  his  commissaries  can  be  judge  and  party ; 
it  was  behovcful  by  the  law  that  he  should  have  com- 
panions, to  hear  and  determine  of  all  writs,  and  plaints, 
of  all  wrongs,  as  well  of  the  king  as  of  the  queen,  and 
her  children;  and  of  those  especially  where  one  could 
not  have  otherwise  common  right :  these  companions  are 
now  called  counts,  earls,  according  to  the  Latin  comites ; 
and  so  at  this  day  are  those  shires  called  counties,  in 
Latin  comitatus ;  and  that  which  is  Avithout  these 
counties,  belongeth  to  the  English  by  conquest. 

After  that  time,  these  companions,  after  the  division 
of  the  realm  into  shires,  divided  their  people  which  they 
found  scattering  about  into  centuries,  and  to  every  cen- 
tury they  appointed  a  centiner,  and  according  to  the 


Ch.  I.,  Sc.  3.]        FIRST  CONSTITUTIONS.  21 

number  of  the  centuries  spake  every  shire ;  and  to  every 
centiner  they  assigned  his  part  by  metes  and  bounds, 
to  keep  and  defend  the  same  with  his  century,  so  that 
they  were  ready  to  run  to  their  arms  at  all  times  when 
the  enemies  came,  or  other  needful  occasion  was.  And 
these  divisions  in  some  places  are  called  hundreds,  ac- 
cording to  the  number  of  the  first  people ;  and  in  some 
places  tithings,  or  wapentakes,  according  to  the  Eng- 
lish;  (which  is  in  French  taking  of  arms);  these  di- 
visions they  made,  whereby  the  peace,  which  consisted 
in  charity  and  true  love,  was  kept  and  maintained. 


Sect.  3. 

Of  the  constitutions  made  by  the  ancient  Icings. 

Of  king  Alfred. 

For  the  estate  of  the  realm,  king  Alfred  caused  the 
earls  to  meet,  and  ordained  for  a  perpetual  usage,  that 
twice  in  the  year,  or  oftener,  if  need  were,  in  time  of 
peace  they  should  assemble  together  at  London,  to  speak 
their  minds  for  the  guiding  of  the  people  of  God, 
how  they  should  keep  themselves  from  offences,  should 
live  in  quiet,  and  should  have  right  done  them  by  cer- 
tain usages,  and  sound  judgments. 

King  Edward  I. 

By  this  estate  many  ordinances  were  made  by  many 


22     OF  THE  FIRST  CONSTITUTIONS  MADE     [Ch.  I.,  Sc.  3. 

kings,  until  the  time  of  the  king  that  now  is ;  the  which 
ordinances  were  abused,  or  not  used  by  many,  nor  very 
currant,  because  they  were  not  put  into  writing,  and 
certainly  published. 

One  of  the  ordinances  was ;  that  every  one  should 
love  his  creator  with  all  his  soul,  and  according  to  the 
points  of  the  Christian  faith ;  and  wrong,  force,  and 
every  offence  was  forbidden. 

And  it  was  assented  unto,  that  these  things  following 
should  belong  to  kings,  and  to  the  right  of  crown.  Sov- 
ereign jurisdiction. 

The  sovereign  jurisdiction  throughout  the  whole  land 
unto  the  midst  of  the  sea  encompassing  the  whole  realm, 
as  franchises,  treasure  found  in  the  land,  waif,  estray; 
goods  of  felons  and  fugitives  which  should  remain  out 
of  any  one's  rights,  counties,  honours,  hundreds,  wards, 
goals,  forests,  chief  cities ;  the  chief  ports  of  the  sea, 
great  manors ;  these  rights  the  first  kings  held,  and  of 
the  residue  of  the  land  they  did  enfeoff  the  earls,  barons, 
knights,  Serjeants  and  others,  to  hold  of  the  kings  by 
the  services  provided,  and  ordained  for  tlie  defence 
of  the  realm  according;  to  the  articles  of  the  ancient 


'is 


kings. 

Also  coroners  were  ordained  in  every  county,  and 
sheriffs  to  defend  the  county,  when  the  counties  were 
dismissed  of  their  guards,  and  bailiffs  in  the  places  of 
centiners.  And  the  sheriffs  and  bailiffs  caused  the  free- 
tenants  of  their  bailiwicks  to  meet  at  the  counties  and 


I 


Ch.  I.,  Sc.  3.]        BY  THE  ANCIENT  KINGS.  23 

hundreds;  at  which  justice  was  so  done,  that  every  one 
so  judged  his  neighbour  by  such  judgment  as  a  man 
could  not  elsewhere  receive  in  the  like  cases,  until  such 
times  as  the  customs  of  the  realm  were  put  in  writing, 
and  certainly  established. 

And  although  a  freeman  commonly  was  not  to  serve 
without  his  assent,  nevertheless  it  was  assented  unto, 
that  free-tenants  should  meet  together  in  the  counties, 
hundreds,  and  the  lords  courts,  if  they  were  not  es- 
pecially exempted  to  do  such  suits,  and  there  judged 
their  neighbours. 

And  that  right  should  be  done  from  15  days  to  15 
days  before  the  king  and  his  judges,  and  from  month 
to  month  in  the  counties,  if  the  largeness  of  the  coimties 
requireth  not  a  longer  time ;  and  that  every  three  weeks 
right  should  be  administered  in  other  courts;  and  that 
every  free-tenant  was  bound  to  do  such  suit ;  and  every 
free-tenant  had  ordinary  jurisdiction:  and  that  from 
day  to  day  the  right  should  be  hastened  of  strangers,  as 
in  courts  of  Pipowder  according  to  the  law-merchant. 

The  turns  of  sheriffs  and  views  of  free  pledges  were 
ordained ;  and  it  was  ordained,  that  none  of  the  age  of 
14  years  or  above,  was  to  remain  in  the  realm  above 
forty  days,  if  they  were  not  first  sworn  to  the  king  by 
an  oath  of  fealty,  and  received  into  a  decennery. 

It  was  ordained,  that  every  plaintiff  have  a  remedial 
writ  to  the  sheriffs,  or  to  the  lord  of  the  free  in  this 
form.     Questus  est  nobis  C.  quod  0.  etc.     Et  idea  tihi 


24       OF  THE  FIRST  CONSTITUTIONS  MADE   [Ch.  I.,  Sc.  3. 

(vices  nostras  in  hac  parte  committentes)  prcecipimus 
quod  causam  illam  audias  et  legitimo  fine  decidas. 

It  was  ordained,  that  every  one  have  a  remedial  writ 
from  the  king's  chancery,  according  to  his  plaint  with- 
out difficulty,  and  that  every  one  have  the  process  from 
the  day  of  his  plaint  without  the  seal  of  the  judge,  or 
of  the  party. 

It  was  ordained,  that  coroners  should  receive  appeals 
of  felony,  and  should  give  the  judgments  of  outlawries, 
and  should  make  the  visnes  in  the  causes  aforesaid; 
and  that  all  the  next  towns  should  present  to  the  coro- 
ners in  the  county  the  mischances  of  the  bodies  of  the 
people,  and  the  names  of  the  finders. 

And  that  every  county  should  present  felonies,  mis- 
chances, and  other  articles  presentable  in  the  Eyres  for 
offences,  that  the  kings  might  send  to  summon  them  to 
appear  against  the  coming  of  the  kings  or  of  the  justices 
assigned  to  hold  all  pleas. 

And  for  the  great  damages  which  the  Commons  suf- 
fer by  amercements  issuing  out  for  concealments,  and 
for  fault  of  these  presentments  in  Eyres  it  was  agreed 
unto,  that  these  presentments  in  Eyres  should  be  by 
the  coroners  chosen  by  all  the  Commons  of  the  county, 
and  so  the  coroners  are  as  it  were  the  Commons  bailiffs 
as  to  these  charges:  nevertheless  they  are  the  king's 
ministers,  because  they  take  an  oath  to  him.  For  per- 
sonal trespasses  nevertheless,  the  coroners  are  only  pun- 
ishable, without  any  damage  to  those  who  chose  them, 


Ch.  I.,  Sc.  3.]        BY  THE  ANCIENT  KINGS.  25 

unless  they  have  not  sufficient  wherewith  to  satisfy  for 
their  trespasses. 

The  Exchequer  was  ordained  in  manner  as  follow- 
eth ;  and  the  pecuniary  penalties  of  earldoms,  and  baro- 
nies certain,  and  also  of  all  earldoms  and  baronies  intire 
or  dismembered ;  and  that  those  amercements  were  af- 
feered  by  the  barons  of  the  Exchequer,  and  that  the 
estreats  of  the  amercements  be  sent  into  the  Exchequer 
though  they  were  amerced  in  the  king's  court. 

It  was  ordained,  that  after  a  plaint  of  wrong  be 
sued,  that  no  other  have  jurisdiction  in  the  same  place, 
before  the  first  plaint  be  determined ;  and  from  thence 
came  this  clause  in  the  writ  of  right,  Et  nisi  feceris 
vicecomes  facial. 

It  was  ordained,  that  every  one  of  the  age  of  four- 
teen years  and  above  should  be  ready  to  kill  mortal 
offenders  in  their  notorious  sins,  or  to  follow  them  from 
town  to  town  with  hue  and  cry;  and  if  they  could  not 
kill  them,  the  offenders  to  be  put  in  exigent,  and  out- 
lawed or  banished. 

And  that  none  should  be  outlawed  but  for  a  mortal 
offence,  and  in  no  other  county  but  where  he  committed 
the  offence. 

It  was  ordained,  that  the  king's  courts  should  be  open 
to  all  plaints,  by  which  they  had  original  writs  without 
delay,  as  well  against  the  king  or  the  queen,  as  against 
any  other  of  the  people,  for  every  injury  but  in  case 
of  life,  where  the  plaint  held  without  w^rit. 


26       OF  THE  FIRST  CONSTITUTIONS  MADE  [Ch.  I.,  Sc.  3. 

It  was  ordained,  that  no  king  of  this  realm  should 
change  his  money,  nor  impair  it,  nor  inhance,  it,  nor 
make  any  other  money  but  of  silver,  without  the  assent 
of  the  lords  and  all  the  commons. 

It  was  ordained,  that  felonies  should  be  tried  by  ap- 
peals, and  that  appeals  might  sometimes  be  ended  by 
battle,  and  that  exigents  of  the  offenders  should  con- 
tinue by  three  county  courts  before  the  outlawry. 

It  was  ordained,  that  all  free-tenants  should  be  obe- 
dient, and  appear  at  the  summons  of  the  lords  of  the  fee, 
and  if  one  caused  a  man  to  be  summoned  elsewhere  than 
in  the  fees  of  the  avowants,  or  oftener  than  from  court 
to  court,  that  they  were  not  bound  to  obey  such  sum- 
mons, if  not  at  the  charges  of  the  avowants  of  the  sum- 
mons. 

It  was  ordained,  that  knights  fees  should  come  to  the 
eldest  son  by  succession  of  the  inheritance,  and  that 
socage  lands  should  be  partable  amongst  the  right  heirs, 
and  that  none  might  alien  but  the  fourth  part  of  his  in- 
heritance without  the  consent  of  his  heir,  and  that  none 
might  alien  his  lands  by  purchase  from  his  heirs,  if 
assigns  were  not  specified  in  the  deeds. 

It  was  ordained,  that  every  one  might  endow  his  wife 
ad  ostium  ecclesice  or  of  the  monastery,  without  the  con- 
sent of  his  heirs ;  that  heir  females,  nor  widows  should 
not  marry  themselves  without  the  assent  of  their  lords, 
because  the  lords  were  not  bound  to  take  the  homages 
from  their  enemies,  or  other  unknown  persons ;  and  the 


Ch.  I.,  Sc.  3.]       BY  THE  ANCIENT  KINGS.  27 

same  is  forbidden  upon  pain  of  forfeitures,  whether 
their  parents  were  consenting  thereunto  or  not ;  and  that 
widows,  in  case  they  marry  without  the  consent  of  the 
guardians  of  the  lands,  should  lose  their  dowries;  that 
those  also  should  be  disinherited  or  lose  their  dowries 
that  married  before;  widows  nevertheless  this  should  not 
forfeit  their  inheritance  for  whoredom,  and  that  the 
eldest  son  should  forfeit  nothing  to  the  prejudice  of  his 
ancestor,  nor  his  heirs,  living  the  ancestor  whose  heir 
apparent  lie  is. 

It  was  ordained,  that  the  lords  of  fees  might  summon 
their  tenants  by  the  award  of  their  peers  into  the  lords 
courts  or  into  his  counties,  or  the  hundred  at  all  times 
that  they  detain  or  deny  to  do  their  services  in  deed, 
or  in  word,  et  e  contra,  that  is  to  say ;  the  lords  against 
the  tenants,  and  there  they  shall  be  acquitted,  or  forfeit 
their  allegiance  with  the  appurtenances,  by  the  judg- 
ment of  the  suitors,  and  all  their  tenancy ;  and  the  tor- 
tious or  outragious  lords  shall  lose  their  fees  and  the 
services,  and  the  tenements  shall  go  to  the  chief  lords 
of  the  fee. 

It  was  forbidden,  that  none  be  distrained  by  his  move- 
able goods,  but  by  their  bodies,  or  by  their  fees,  except 
in  special  cases  after  mentioned. 

It  was  ordained,  that  infants  should  be  in  ward  with 
their  lands  and  goods,  and  that  the  guardians  should 
answer  for  trespasses  done  by  their  wards,  and  give 
satisfaction  to  those  who  were  damaged,  except  of  felo- 


28       OF  THE  FIRST  CONSTITUTIONS  MADE  [Ch.  I.,  Sc.  3. 

nies;  and  that  their  marriages  should  be  to  the  lords, 
and  that  they  should  have  escuage,  relief  and  aids  of 
their  tenants  which  they  held  of  the  lords,  as  to  make 
the  heir  of  the  lord  knight,  and  to  marry  their  eldest 
daughters,  and  that  the  heirs  males  should  do  homage  to 
their  lords,  and  the  females  should  swear  fealty;  and 
that  the  inheritance  should  descend  to  all  the  children  by 
warrant  of  right  of  the  possession,  and  that  the  male 
should  bar  the  female,  and  the  next  the  more  remote  by 
warrant  of  right  of  propriety. 

It  was  ordained,  that  offenders  guilty  of  death  should 
not  be  suffered  to  remain  amongst  the  guiltless,  and  that 
the  king  should  have  the  value  of  the  lands  and  the 
rent  for  one  year,  and  the  waste  of  felons  lands;  and 
also  that  he  should  have  all  deodand;  and  that  the  goods 
and  chattels  of  usurers  should  remain  as  escheats  to  the 
lords  of  the  fees. 

Essoins  were  ordained  in  mixt  and  real  actions,  and 
not  in  personal  actions,  as  after  is  said. 

It  w^as  forbidden,  that  any  one  should  alien  the  profits 
of  his  lands,  or  his  rents  to  any  one  out  of  the  realm; 
and  it  was  also  forbidden,  that  none  sold  wdne  in  the 
kingdom  but  by  ton  or  pipe. 

It  was  forbid,  that  no  money  was  to  be  carried  out  of 
the  realm ;  and  that  none  should  carry  wool  out  of  the 
kingdom,  nor  should  kill  lamb,  or  calf  which  might 
live,  nor  ox  which  was  not  gelt. 

It  was  forbidden,  that  no  bishop  do  ordain  laymen 


Ch.  I.,  Sc.  3.]        BY  THE  ANCIENT  KINGS.  29 

to  the  order  of  clerks  above  the  number  which  are  suffi- 
cient to  serve  the  churches,  whereby  the  king's  jurisdic- 
tion be  destroyed :  it  was  ordained,  that  the  poor  should 
be  sustained  by  parsons,  rectors  of  the  church,  and  by 
the  parishioners,  so  that  none  .of  them  die  for  want  of 
sustenance. 

It  was  ordained,  that  fairs  and  markets  sliould  be 
in  places,  and  tliat  the  buyers  of  corn  and  cattle  should 
pay  toll  to  the  lords  bailiffs  of  markets  or  fairs;  that 
is  to  say,  a  false  penny  of  six  shillings  of  good,  and  of 
good,  less,  and  of  more,  more ;  so  that  no  toll  exceed  a 
penny  for  one  manner  of  merchandize:  and  this  toll 
was  given  to  testify  the  contracts,  for  that  every  private 
contract  was  forbidden. 

It  was  ordained,  that  no  action  was  receivable  to  judg- 
ment, if  there  was  not  a  present  proof  by  witnesses  or 
other  things;  and  that  none  was  bound  to  answer  to 
any  suit,  nor  to  appear  to  any  action  in  the  king's  courts 
"before  the  king's  justices,  before  they  found  sureties  to 
answer  damages  and  the  costs  of  suit,  if  damages  lay  in 
the  case,  except  in  four  offences,  disseisins,  certification 
of  disseisins,  attaints,  re-disseisins,  and  other  cases.  To 
which  ordinance  king  Henry  the  first  put  this  mitiga- 
tion in  favour  of  poor  plaintiffs,  that  those  who  had  not 
sufficient  sureties  present,  should  make  satisfaction  ac- 
cording to  their  ability,  according  to  a  reasonable  taxa- 
tion;  and  in  the  same  manner  in  summons's,  and  in 
iatred  of  perjury  attaints  were  ordained  in  all  actions. 


30  OF  OFFENCES.  [Ch.  I.,  Sc.  4. 

It  was  forbidden,  that  no  merchant  alien  should  re- 
pair into  England  but  at  four  fairs,  and  that  none  such 
should  remain  in  the  realm  above  forty  days. 

Of  the  curtesy  of  king  Henry  the  first,  it  was  granted, 
that  all  those  who  survived  their  wives  who  were  with 
child  by  them,  should  hold  their  wives  inheritance  for 
ever. 

Many  other  ordinances  were  made  by  them,  and  since 
have  been  made  in  aid  of  the  peace,  according  as  after- 
wards shall  be  said. 


Sect.  4. 
Of  Offences,  and  the  division  of  them. 

The  division  of  offences  is  according  to  that  which 
appeareth  by  the  punishment.    Mortal,  or  venial. 
The  mortal  offences  are  these : 

r  Majesty,  Burning,  Burglary, 
Of      \    Falsifying,  Larceny,  Homicide, 
[  Treason, 

Of  the  offence  of  majesty. 

The  crime  of  majesty  is  an  horrible  offence  done 
against  the  king ;  and  that  is  either  against  the  king  of 
heaven,  or  an  earthly  king. 


Ch.  I.,Sc.  4.J  OF  OFFENCES.  31 

Against  the  king  of  heaven  in  three  manners.  Heresy, 
venery,  sodomy. 

Against  the  earthly  king  in  3  manners. 

1.  By  these  who  kill  the  king,  or  compass  so  to  do. 

2.  By  those  who  disinherit  the  king  or  his  realm,  by 
bringing  in  an  army,  or  compass  so  to  do. 

3.  By  those  adulterers  who  ravish  the  king's  wife, 
the  king's  lawful  eldest  daughter  before  she  be  married, 
being  in  the  king's  custody ;  or  the  nurse,  or  the  king's 
aunt,  heir  to  the  king. 

Heresy  is  an  evil  and  false  belief,  arising  out  of 
error  of  the  true  Christian  faith ;  under  this  offence  is 
witchcraft  or  divination,  which  are  members  of  heresy ; 
and  in  case  less  notorious  they  come  by  presumptions 
of  ill  works,  which  are  by  evil  art,  arising  from  an  ill 
belief;  and  sometimes  of  a  firmer  belief  they  do  won- 
ders, and  sometimes  they  come  by  open  confessions  of 
error. 

So  heresy  is  an  art  to  divine. 

Divination  properly  is  taken  in  the  ill  sense,  as 
prophecy  is  taken  in  a  good  sense. 

Divination  used  to  be  in  many  kinds,  whereof  one 
manner  of  divination  was  through  an  ill  belief,  by  the 
which  the  witch  caused  Samuel  to  rise,  who  warned 
Saul  of  his  death. 

Another  kind  is  piromancy,  which  is  done  by  fire. 

Another  is  areomancy,  which  used  to  be  done  by  signs 
in  the  air. 


32  OF  OFFENCES.  [Chap.  I.,  Sc.  4. 

Another  is  Hydromancy,  which  is  done  by  signs  in 
the  water. 

Another  is  geomancj,  which  is  done  by  signs  in  the 
land. 

Another  is  necromancy,  which  is  done  by  death,  by 
making  the  dead  to  speak. 

Another  is  south-saying  which  was  done  by  signs  in 
the  entrails  and  bowels  of  birds. 

On  the  other  part,  some  diviners  used  to  pnt  trust 
in  lots,  some  in  songs,  some  in  verses  of  psalms,  some  in 
carrying  gospel  and  charms  about  their  necks,  some  in 
enchantments  and  spells,  some  in  signs  in  the  entrails 
of  beasts,  and  in  the  palms  of  the  hands. 

Some  were  called  mathematicians,  and  magi,  and 
divined  by  the  stars. 

Others  were  called  Arioles,  who  took  their  answers 
from  the  devil  by  evil  men. 

Others  south-sayers,  who  numbered  nights  and  days 
and  hours,  whereby  they  ordered  their  business.  There 
Avere  many  other  kinds,  all  which  manner  of  diviners 
are  to  be,  by  the  word  of  God  himself,  and  authority  of 
the  church  to  be  excommunicated,  and  forbidden  as 
much  as  mahometanism,  and  things  against  the  true 
faith.  And  this  St.  Augustine  proves  by  many  reasons ; 
and  hence  it  is,  that  they  who  travel  to  witches  or  di- 
viners to  know  things  to  come  give  that  to  the  creatures 
which  belonoeth  to  God  alone.  "\Mierefore  these  wicked 
doers  are  to  be  removed  from  the  society  of  God's  holy 


Ch.  I.,  Sc.  5.]  OF  OFFENCES,  ETC.  33 

people,  so  that  no  good  Christian  be  taken  with  their  art, 
nor  partner  in  their  sins. 


/ 
/ 

Sect.   5. 


The  crime  of  majesty,  or  offence  against  the  king  is 
neighbour  to  many  other  offences ;  for  all  those  who  com- 
mit perjury,  whereby  every  one  lieth  against  the  king 
falleth  into  this  offence.  As  the  king's  ministers  who 
are  sworn  to  do  justice,  and  forswear  themselves  in  any 
thing,  so  those  who  disseise  the  king  of  any  of  his  fran- 
chises, or  of  any  manner  of  right  which  belongeth  to 
the  crown  by  occupations,  or  purprestures,  or  in  any 
other  manner,  although  it  be  no  mortal  offence. 

Into  perjury  fall  all  those  subjects  of  the  king  who 
appropriate  to  themselves  jurisdictions  over  the  king, 
and  of  themselves  make  judges,  sheriffs,  coroners,  and 
other  officers  to  have  conusance  of  law. 

Into  perjury  against  the  king  fall  all  the  king's  sub- 
jects who  appropriate  to  themselves  jurisdictions  of 
counties,  honours,  sockness,  retorna  hrevium,  or  any 
thing  which  may  fall  to  his  inheritance;  as  wards, 
escheats,  reliefs,  suits,  services,  or  marriages,  fairs,  mar- 
kets, enfangthef,  outfangtlicf,  waif,  estray,  treasure 
found  in  the  ground,  warren  in  their  own  lands,  or  in 
the  lands  of  others,  toll,  pavage,  pontage,  chiminage, 
murage,  carriage,  or  other  the  like  customs. 


34  OF  OFFENCES,  AND  THE  [Ch.  I.,  Sc.  5. 

Into  perjury  against  the  king  fall  those  the  king's 
subjects  Avho  take  abjurations  of  felons  and  fugitives, 
and  are  no  coroners,  nor  Avarranted  by  the  king  so  to 
do;  and  those  who  put  out  any  indicted  or  appealed 
of  any  crime  out  of  the  roll  of  the  coroner;  and  those 
coroners  who  oftener  than  once  receive  appeals  of  ap- 
provers, or  procure  that  a  man  who  is  innocent  be  ap- 
pealed by  an  approver.  And  those  who  have  detained 
appeals  of  approvers  of  foreign  acts,  or  whereby  any 
foreigner  is  appealed.  And  those  coroners  who  wit- 
tingly suffer  the  goods  and  chattels  of  fugitives  to  be 
less  valued  than  they  ought  to  be  of  right;  or  conceal 
them  in  part  or  in  all,  or  detain  them  to  their  o^vn  uses, 
to  the  damage  of  the  king;  or  deliver  them  elsewhere 
than  to  the  towns,  or  for  lucre  have  taken  more  than 
they  should  in  damage  of  the  towns,  or  suffer  their 
servants  to  have  the  garments,  or  other  things  which 
are  to  be  geized  for  the  king's  use,  or  the  garments  of 
the  dead,  or  delay  to  do  their  office  through  covetous- 

ness. 

Into  perjury  against  the  king  fall  those  officers  who 
pardon  fines  and  amercements  which  belong  to  the 
king,  or  any  manner  of  penalty,  either  corporal  or 
pecuniary,  without  special  warrant.  And  those  officers 
who  by  summons  and  adjournments  make  the  people  to 
travel  in  vain,  as  to  gaol-deliveries,  assizes,  enquests,  or 
otherwise ;  and  all  those  subjects  who  bear  arms  against 
the  kins,  or  run  awav  from  his  lawful  army  or  battle ; 


Ch.  I.,Sc,  5.J  DIVISION  OF  THEM.  Zh 

and  those  ministers  who  unlawfully  stop,  or  counsel 
the  people  that  they  go  not  into  war  with  the  king,  or 
that  they  are  not  bound  to  go,  where  they  have  reason- 
able summons ;  and  that  the  people  be  not  made  knights, 
but  according  to  the  statutes  of  the  realm. 

Into  perjury  against  the  king  fall  all  those  the  kings 
subjects,  who  hold  plea  of  Withernam,  and  have  not 
return  of  writs,  or  hold  pleas  of  distresses,  or  of  any 
other  thing  which  belongeth  to  the  king's  jurisdiction 
only,  without  the  king's  special  commission,  or  hold 
plea  in  case  of  life,  of  imprisonment,  of  blood-shed,  of 
false  judgments,  or  of  any  thing  disavowable  of  right 
without  the  king's  writ,  or  commission. 

And  all  those  the  king's  ministers  who  maintain  false 
actions,  false  appeals,  or  false  defences. 

Into  perjury  against  the  king  fall  those  ministers 
who  deny  to  plaintiffs  original  writs  possessory,  attaints, 
or  of  formedon  ;  or  othorwise  do  delay  their  rights,  and 
those  who  wrongfully  do  delay  or  disturb  right  judg- 
ments, and  those  who  wrongfully  favour  wrougful  judg- 
ments; and  all  those  who  use  their  privileges  or  liber- 
ties wrongfully,  or  too  largely,  contrary  to  their 
knowledge. 

Into  perjury  against  the  king  fall  those  ministers, 
who  receive  fines  to  other  uses  than  to  the  king's  use  for 
treasure  trove,  for  wreck,  waif,  estray,  aliens,  for  blood- 
shed, or  imprisonment,  withernam,  re-disseisin,  or  dis- 
seisin, or  forswear  themselves  to  resist,  that  a  lawful 


36  OF  OFFENCES,  ETC.  [Ch.  I.,  Sc.  5. 

judgment  have  not  execution;  for  usury,  purpresture 
upon  the  king,  or  for  any  other  thing  whereof  the  conu- 
sance doth  belong  to  the  king. 

And  those  receivers  who  pay  not  the  king's  debts  as 
they  ought  to  do,  and  are  enjoined,  or  render  to  him 
part  for  satisfaction  of  the  whole,  and  do  not  pay  the 
king  the  rest. 

Into  perjury  against  the  king  fall  those  who  charge 
the  king  wrongfully.  And  those  who  spend  the  king's 
quarries,  timber  or  other  things,  otherwise  than  in  the 
kino-'s  service,  without  sufficient  Avarrant. 

Into  perjury  against  the  king  fall  escheators,  who 
make  waste  of  the  king's  wards,  or  in  his  fees,  or  un- 
lawfullv  take  venison,  fish,  or  other  goods ;  and  by  their 
authority  seise  the  goods  of  the  dead,  and  for  gain  re- 
lease them ;  or  endow  widows  to  the  king's  loss ;  or  make 
hurtful  extents  for  the  king,  accounting  for  less  than 
the  very  value  to  the  king,  or  willingly  suffer  posses- 
sions to  remain  in  mortmain  which  ought  to  be  seized 
into  the  king's  hands,  and  whereof  the  king  ought  to 
have  the  profit,  or  which  receive  more  of  their  baili- 
wicks than  they  answer  to  the  king,  or  who  wittingly 
suffer  feoffments  of  land,  or  of  advowsons  of  churches 
prejudicial  to  the  king,  or  who  suffer  them  to  alien 
wards  or  marriages  to  the  king's  prejudice,  or  suffer  the 
ages  of  infants  to  be  proved  in  damage,  or  to  the  king's 
prejudice  take   fines  for  wards  or  marriages  without 


Ch.  I.,Sc.  5.J  OF  FALSIFYING.  37 

writ,  or  deceive  any  one  by  colours  of  their  office,  or  levy 
money  upon  any  upon  his  own  proper  amercement. 

Into  perjury  against  the  king  fall  sheriffs,  who  too 
high  charge  the  people,  by  a  surcharge  upon  the  people 
of  horses,  or  of  dogs,  and  who  levy  fines  or  amercements 
for  escapes  of  prisoners,  or  for  any  thing  against  law 
before  the  escapes  be  adjudged  by  the  justices  in  Eyre, 
and  who  increase  or  diminish  fines  or  amercements  be- 
yond the  wills  of  the  afferors  or  jurors,  and  those  offi- 
cers who  conceal  people  deliverable  to  prison  and  do  not 
bring  them  to  judgment. 

Into  perjury  fall  all  those  officers  who  are  reproveable 
for  the  sufferance,  negligence,  or  consent  to  the  aliena- 
tion of  the  franchises  or  of  the  right  of  the  king  wrong- 
fully, or  to  the  occupying,  or  withholding  of  them. 

And  all  those  who  elsewhere  change  old  money  which 
is  forbidden  for  new,  than  at  the  king's  change. 


Sect.   G. 
Of  falsifying. 

Falsifying  is  done  in  two  manners;  by  falsifying 
the  king's  seal,  and  his  money. 

His  seal  may  be  falsified  in  many  manners.  It 
is  always  falsified  when  a  writ  is  sealed,  where- 
of the  ingrossing,  and  the  matter,  or  the  form  is  not 


38  OF  FALSIFYING.  [Ch.  I.,  Sc.  6. 

justifiable  bv  tlie  king,  nor  by  the  law,  nor  by  the  lawful 
customs  of  the  realm,  which  is  not  to  be  intended  of 
every  writ  abatable. 

It  is  falsified  if  a  man  seal  therewith  after  that  the 
chancellor,  or  other  keeper  thereof  hath  lost  his  war- 
rant, either  by  death,  or  in  any  other  manner. 

It  is  falsified  when  a  writ,  or  a  patent  passeth  against 
the  king's  forbidding.  It  is  falsified  by  those  who  seal 
by  ill  art,  or  by  warrants  not  justifiable,  and  it  is  falsi- 
fied by  those  who  seal  and  have  not  authority  to  seal. 

Of  falsifying  the  money.  Tlie  money  was  ordained 
round  and  quarterable,  and  use  so  to  be  made  that  the 
outward  circle  was  apparent  through  the  whole,  other- 
wise it  was  not  to  be  received ;  and  that  the  1  I.  was  of 
12  ounces  of  fine  silver,  and  it  was  assented  unto  that 
the  king  should  have  6  d.  for  the  sealing  of  every  writ, 
and  for  the  coinage  of  every  pound  of  money  12  d.  and 
no  more  of  monies  current  in  the  realm. 

The  money  is  falsified  by  him  who  by  evil  -covetous- 
ness  maketh  it  not  justifiable ;  and  it  is  falsified  by  those 
who  make  it,  and  have  not  authority  or  warrant  so  to  do  ; 
it  is  also  falsified  by  those  who  for  evil  gain  put  more 
alloy  in  it  then  of  right  there  ought  to  be.  And  it  is 
falsified  by  all  those  who  make  it  without  the  king's 
coinage.  And  it  is  also  falsified  bv  all  those  who  bv 
ill  art  counterfeit  it,  and  by  those  who  clip  or  wash  it 
for  ill  gain. 


I 


LH.  I.,Sc.  7.]  OF  TREASON.  39 

Sect.  7. 

Of  treason. 

Treason  is  not  done  but  betwixt  allies,  who  may  be 
by  blood,  affinity  and  homage,  oath  and  service.  By 
blood,  as  if  one  of  parentage  do  any  thing  to  another 
of  his  blood  which  is  the  cause  of  his  death,  or  disin- 
herison, or  to  loss  of  homage ;  for  the  quality  of  treason 
is  the  taking  away  of  life  or  member,  or  decrease  of 
earthly  honour,  or  the  increase  of  villainous  shame. 
And  in  the  same  manner  is  this  offence  betwixt  affines, 
as  betwixt  sisters,  sons-indaw  and  parents;  for  as 
oosinage  is  a  line  of  divers  parceners  descending  of  the 
same  stock,  and  drawn  from  carnal  copulation ;  in  like 
manner  affinity  is  a  nearness  of  })ersons  descending  from 
carnal  copulation  where  there  is  no  blood ;  and  as  this 
offence  is  done  betwixt  affines  and  cousins,  so  it  is  also 
betwixt  allies. 


AlliaDce  is  sometimes  by 


Service, 
Homage,  and 

oaths. 


Which  happeneth  sometimes  by  reason  of  fealty  issuing 
from  the  service  of  the  fee;  sometimes  issuing  from 
the  oath  of  service  of  the  body,  and  as  one  of  the  allies, 
parents  or  affines  commit  this  offence  against  the  other, 
in  the  same  manner  mav  thev  do  aa:ainst  them. 


40  OF  BURNERS.  [Ch.  I.,  Sc.  8. 

By  services ;  as  if  one  who  I  have  rewarded,  to  do  me 
fealtj,  and  be  seised  in  demesne  of  a  manor  or  other 
gift,  or  service,  or  courtesy,  falsify  my  seal,  or  ravish 
my  daughter  or  my  wife,  or  the  nurse,  or  the  aunt  of 
my  heir,  or  doth  any  thing  which  is  the  cause  of  my 
death  by  a  felonious  compassing  the  same,  or  to  the 
great  dishonour  or  damage  of  my  body,  or  of  my  goods, 
or  discovereth  my  counsel,  or  my  confession,  which  he  is 
charged  to  conceal. 

And  by  reward  is  meant,  fee,  possession,  robe,  church, 
rent,  or  other  gift,  and  meat  and  drink  during  the 
service. 

And  as  such  a  one  may  commit  treason  against  me, 
who  taketh  from  me  so  much  that  he  is  seized,  in  the 
same  manner  I  may  offend  against  him ;  by  such  action 
or  demand  he  shall  have  against  me,  as  I  may  have 
against  him. 


Sect.  8. 
Of  burners. 

Burners  are  those  who  burn  a  city,  town,  house, 
men,  beasts,  or  other  chattels,  feloniously,  in  time  of 
peace  for  hatred  or  revenge.  And  if  any  one  put  a  man 
into  the  fire,  whereby  he  is  burnt  or  blemished  by  the 
fire,  although  he  be  not  killed  with  the  fire,  neverthe- 
less it  is  an  offence  for  which  he  shall  die.  Under  this 
offence  sometimes  fall  those  who  threaten  burning. 


Ch.  I.,  Sc.  9.]  OF  MAN-SLAUGHTER.  41 

Sect.  9. 
Of  Manslaughter. 

Man-slaughter  is  the  killing  of  a  man  by  a  man ; 
for  if  it  be  done  by  a  beast,  or  by  mischance,  it  is  not 
man-slanghter. 

This  offence  is  two  ways ;  either  by  the  tongue,  or  by 
the  act. 

By  the  tongue  three  ways ;  by  counsel,  commandment, 
or  denial. 

By  counsel ;  as  he  who  counselleth  another  to  kill,  and 
so  also  it  is  by  commandment. 

By  denial ;  as  he  who  denieth  sustenance  to  a  man. 

By  act  many  ways ;  sometimes  by  striking,  by  poison- 
ing, by  necessity,  by  will. 

By  striking ;  as  it  afterward  appeareth  in  the  appeals. 

By  poisoning  or  venoming;  as  by  secret  felony,  and 
feigned  friendship,  giving  poison  to  another  to  eat,  or 
poisoneth  or  envenomed  any  thing,  whereby  a  man  is 
presently  or  in  time  killed.  Or  by  imprisonment ;  as 
he  who  keepeth  the  body  of  a  man  in  prison  by  colour 
of  law,  till  he  dieth.  By  chance ;  as  by  casting  or  draw- 
ing of  a  vessel,  or  other  thing,  and  some  one  is  killed 
by  mischance,  or  by  the  falling  of  a  tree,  and  other  the 
like  cases.  But  you  must  distinguish  where  the  killing 
is  justifiable  by  law,  for  there  it  is  no  offence ;  and  when 


42  OF  MAN-SLAUGHTER.  [Ch.  I.,  Sc.  9. 

he  dotli  not  that  which  he  ought  to  do,  and  the  party 
useth  all  the  diligence  which  he  may,  crying  out,  and 
defending  himself,  for  then  he  doth  not  greatly  offend ; 
but  he  who  doth  not  so  do  he  offendeth  mortally. 

By  necessity;  wherein  you  ought  to  distinguish 
whether  the  necessity  be  avoidable  or  not,  and  if  it  be 
avoidable,  it  is  a  mortal  offence. 

By  will ;  and  that  may  be  either  of  himself,  or  of  some 
other  person. 

Of  himself ;  as  in  case,  when  people  hang  themselves 
or  hurt  themselves,  or  otherwise  kill  themselves  of  their 
own  felony. 

Of  others ;  as  by  beating,  famine,  or  other  punish- 
ment; in  like  cases,  all  are  man-slayers.  Also  this  of- 
fence is  done  willingly ;  as  by  those  who  pain  men  so 
much  as  ought  not,  or  not  so  much  as  they  ought,  he 
offendeth  mortally.  But  it  may  be  alledged ;  that  by 
reason  of  the  pain  the  dead  doth  falsely  confess  the 
felony;  and  sometimes  by  the  reward  of  the  coroners 
or  justices  are  destroyed;  and  as  it  is  of  those  who  cast 
and  leave  children  and  others  who  cannot  go  in  deserts, 
or  in  such  places,  and  return  not  to  them,  though  they 
do  not  die  in  the  deserts,  God  succouring  them.  And 
also  false  jurors,  and  witnesses  are  men-slayers,  and 
those  who  appeal  others,  or  scandalously  indict  them,  or 
in  other  manner  falsely  accuse  them. 

And  also  they  fall  under  this  offence  who  imprison 
the  people  in  such  places,  or  put  them  to  such  punish- 


Ch.  I.,Sc.  9.]  OF  MAN-SLAUGHTER.  43 

ment,  where  it  may  be  found  by  enquest,  that  by  those 
means,  places  or  punishments  they  came  sooner  to  their 
deaths. 

Three  ways  was  God  himself  killed ;  for  tongues 
killed  him  indeed,  with  the  other  who  crucified  him,  or 
procured  him  so  to  be ;  by  the  tongue  Pilate  killed  him, 
■who  commanded  him  to  be  killed ;  by  will,  the  false 
witnesses,  and  all  those  who  consented  thereunto  killed 
him ;  and  hence  it  is  that  the  evangelists  differ  of  the 
hour  of  his  death,  in  setting  forth  his  passions. 

This  offence  doth  contain  many  branches: 

'  Impriso)Wient, 

31 ay hem, 
viz.    -,   Wounding, 

Battery, 
.  False  ivitnesses. 

Imprisonment  is  the  wrongful  detaining  of  a  man's 
body,  and  that  may  be  in  two  manners;  either  in  a  com- 
mon prison  of  the  king,  or  in  a  private  prison  which  is 
forbidden. 

In  a  common  prison  none  ought  to  be  put,  if  he  be 
not  attainted  of  an  offence  which  requireth  death;  or 
especially  appealed  or  indicted,  and  by  judgment  of  a 
false  and  wrongful  imprisonment. 

A  private  prison  is  1.  sometimes  rightful  and  justi- 
fiable; 2.   wrongful. 

The  same  is  lawful  and  justifiable,  when  a  man  who 


44  OF  MAN-SLAUGHTER.  [Ch.  I.,  Sc.  9. 

is  bailable  is  taken  and  put  in  custody,  till  he  hatk 
found  bail  to  do  that  which  he  ought. 

People  are  in  custody  in  divers  manners;  in  one 
manner  by  the  warrant  of  law,  as  it  is  of  infants  within 
age,  women  in  the  custody  of  their  husbands,  men  of  re- 
ligion in  the  custody  of  the  abbots,  or  other  sovereigiis 
of  their  houses,  and  villains  in  the  custody  of  their 
lords. 

In  another  manner  people  are  in  custody  by  common, 
assent ;  as  it  is  of  ideots,  of  people  wasters  of  their  es- 
tates, of  mad-men,  and  of  those  who  are  drawn  to  fol- 
low infamous  though  pardonable  offences,  who  are  to 
be  in  custody  in  such  cases. 

Into  the  offence  of  manslaughter  fall  all  those  by 
whom  a  man  dieth  in  prison ;  and  that  may  be  either  by 
the  judge,  who  delayeth  to  do  justice,  or  by  duress  of 
the  keepers,  or  by  other  unjustifiable  occasion. 

Into  this  offence  fall  all  those  through  whose  default 
people  die,  being  forsaken  of  those  who  are  bound  to 
sustain  them. 

And  those  who  kill  a  man  imprisoned,  by  a  surcharge 
of  pain,  in  case  when  any  is  adjudged  to  penance. 

And  all  those  who  unjustly  adjudge  a  man  to  death; 
and  those  who  assent  thereunto,  and  false  witnesses  who 
falsely  testify  a  mortal  offence  against  an  innocent  man. 

Into  this  offence  fall  all  jurors,  and  false  physicians, 
and  maintainers  of  killing,  and  those  who  beat  or  wound 


Uti.  L,  Sc.  lO.J  OF  LARCENY.  45 

a  man,  so  that  he  is  far  from  living,  and  nearer  to  his 
death. 

Mayhem  is  the  want  of  member,  or  the  enfeebling 
of  it  by  breaking,  or  cutting  the  bones  of  a  man,  whereby 
he  is  less  able  to  combat. 

And  Turgis  saith,  that  the  loss  of  the  fore-teeth  is 
mayhem,  and  of  the  turning  of  the  mouth,  and  of  the 
little  finger,  and  of  the  right  joint,  and  the  taking  away 
the  toes  of  the  feet  is  mayhem,  and  the  more  reason 
where  more  loss  appeareth. 

And  Sennall  said,  that  the  loss  of  the  eyes  is  may- 
hem, if  nature  have  not  taken  them  away;  but  the  loss 
of  the  middle  teeth,  or  of  the  nose,  or  the  ears  is  not 
mayhem,  although  the  body  is  thereby  reviled  or  dis- 
honoured. 

And  Billing  saith,  that  rasure  by  turning  the  bunes  of 
the  head,  or  of  the  scull  of  the  head  backwards  is  may- 
hem, and  also  of  other  l)ones. 

A  wound  is  cause  of  death  made  by  cutting  of  the 
hand,  or  the  arm  feloniously,  which  is  shewed  by  the 
length,  breadth  or  depth  ;  for  the  cutting  of  a  stone,  or 
of  a  staff  seldom  becometh  a  wounding  but  a  bruising. 


Sect.   10. 

Of  Larcenies. 

Larceny  is  the  treacherously  taking  nwny  fmrn  an- 
other moveables  corporeal,  against  the  will  of  him  to 


40  OF  LARCENY.  [Ch.  I.,  Sc.  10. 

whom  they  do  belong,  by  evil  getting  of  the  possession, 
or  the  use  of  them.  It  is  said  a  taking,  for  bailing,  or 
delivery  is  not  in  the  case ;  it  is  said  of  moveables  cor- 
poreal,  because  of  goods  not  moveables,  or  not  corporeal, 
as  of  land,  rent,  advowsons  of  churches  there  can  be  no 
larceny.  It  is  said  treacherously,  because  that  if  the 
taker  of  them  away  conceive  the  goods  to  be  his  own, 
and  that  he  may  well  take  them,  in  such  case  it  is  no 
offence.  Nor  in  case  where  one  conceives  that  it 
pleases  the  owner  of  the  goods  that  he  take  them,  but 
thereof  there  ought  to  be  apparent  presumption  and  evi- 
dence.    There  be  two  parts  of  larceny. 

One  which  is  done  openly  in  the  day  by  robbery. 
The  other  which  is  done  in  the  night,  or  in  the  twilight. 

Robbery  is  done  sometimes 

I/' 

1.  Thieves. 

2.  Tortious  distresses  of  bailiffs  and  others, 
who  wrongfully  extort  from  the  people. 

3.  Extruders  and  disseisors  who  with  force 
openly  take  the  goods  of  others  as  hefore  is 
said. 

4.  By  others,  who  run  away  with  other  men's 
ivives,  or  ivards,  and  their  goods. 


By  < 


Into  this  offence  fall  all  such  who  take  the  goods  of 
others  by  authority  of  the  king,  or  of  other  great  lords, 
without  the  consent  of  those  whose  goods  they  are. 

Larceny  is  committed  sometimes  by  open  thieves, 
sometimes  by  treacherous;  as  it  is  in  divers  kinds  of 


CH.  I.,  Sc.  10. J  OF  LAliCENY.  47 

merchandizes,  and  as  it  is  of  labourers  who  steal  their 
labours,  and  as  it  is  of  bailiffs,  receivers,  and  adminis- 
trators of  others  goods,  who  steal  them  in  not  giving 
their  accompts. 

Into  this  offence  fall  all  those  who  steal  purses  or 
cloak-bags,  or  do  any  other  larceny,  by  increase  or  covet- 
ousness  of  themselves,  and  all  their  favourers. 

Into  this  offence  fall  all  those  who  suffer  thieves  to 
pass  when  they  may  arrest  them;  those  also  who  may 
take  or  hinder  them,  or  warn  them  of  malice  and  do  not ; 
and  those  who  conceal  them  for  love  of  thief-boot;  or 
other  reward,  or  wittingly  receive  their  larceny,  or  their 
persons. 

Into  this  offence  fall  all  those  who  steal  by  false  meas- 
ures, and  false  weights,  or  in  any  other  manner  of 
treachery  by  colour  of  merchandize,  and  those  who  wit- 
tingly suffer  them  where  they  may  hinder  them. 

Into  this  offence  fall  those  who  wrongfully  amerce 
the  people  with  outragious  amercements,  or  outragiously 
affeer  amercements,  or  wrongfully  condemn  their  neigh- 
bours either  in  damages  or  penalties;  and  those  who 
wronefullv  detain  treasure  found,  wreck,  waif,  or  estray 
which  belongeth  to  the  king;  and  those  who  otherwise 
find  them,  and  do  not  restore  them  when  they  may,  and 
know  to  whom  they  do  belong. 

Into  this  offence  fall  all  those  who  take  wrongful  or 
outragious  toll  in  markets,  cities,  boroughs,  towns,  mills 


48  OF  LARCENY.  [Ch.  1.,  Sc.  10. 

or  elsewhere ;  and  those  who  take  pavage.  murage,  chim- 
inaae,  carria2:e,  or  other  manner  of  customs  more  than 
they  ought  to  do. 

Into  this  offence  fall  those  bailiffs  who  do  enquire  in  _ 
turns  and  views  of  frank-pledges  of  more  articles  than 
personal  offences,  and  of  wrongs  done  to  the  king  and 
his  croAvn,  and  of  wrongs  done  to  the  common  people, 
and  those  who  by  extortion  take  monies  or  fines  for 
beaupleader,  or  for  Avhich  the  jurors  are  not  charged ; 
and  those  who  amerce  any  of  their  own  heads  without 
reasonable  affeerment  of  the  people  sworn  thereunto. 

Into  this  offence  fall  those  who  unjustly  distrain,  and 
those  who  sell  distresses  for  the  king's  debt  within  the 
15  da  vs. 

Into  this  offence  fall  all  those  officers  of  the  Ex- 
chequer, and  others  who  forbid  to  make  acquittances 
under  the  Exchequer  seal,  to  every  one  for  so  much  as  he 
hath  paid ;  and  who  oftner  than  once  cause  a  debt  to  be 
levied;  who  take  rewards,  whereby  the  towns  do  not 
in  due  manner  according  to  the  constitution  of  Win- 
chester ;  or  who  suffer  that  the  people  be  not  furnished 
with  arms  according  to  common  appointment. 

Into  this  offence  fall  all  stealers  of  other's  venison, 
and  of  fish  in  ponds,  and  of  conies,  hares,  pheasants, 
partridges,  being  in  warrens,  and  other  fowl,  doves  and 
■swans,  of  the  Everies  of  all  manner  of  birds. 

Into  this  offence  fall  all  the  sheriffs,  bailiffs,  and 
other  the  king's  officers,  who  unjustifiably  by  extortions 


Cn.  I.,  So.  10.]  OF  LARCENY.  49 

take  money  of  the  people,  as  for  dofanlts  unjustifialjle, 
or  for  sheaves  or  other  custom  unallowable,  or  for  plea 
whereof  the  judge  hath  no  jurisdiction;  and  those  who 
take  money  to  put  men  out  of  panels  of  juries,  and  put 
others  in. 

Into  this  offence  fall  all  those  who  take  lands,  tene- 
ments, horses,  or  other  things,  and  iise  them  beyond  the 
appointed  time  for  the  loan  of  them ;  and  those  who  by 
the  authority  of  their  bailiffs  make  unjustifiable  collec- 
tions for  monies,  or  other  provisions,  or  corn  in  sheaves 
for  scottals,  or  other  festivals,  or  do  to  the  people  other 
unlawful  grievance  in  the  like  case.  And  those  sworn 
officers  who  cause  fines  or  amercements,  or  other  manner 
of  duty  to  bo  oftentimes  levied  upon  one  man,  without 
making  restitution ;  and  those  officers  who  take  of  other 
than  of  the  king,  or  of  their  lords,  to  do  their  office;  and 
those  who  oftner  than  twice  in  the  year  hold  sheriffs 
turns,  or  who  oftner  than  once  in  the  year  hold  views 
of  frank-pledges  in  one  court ;  and  those  who  by  unjusti- 
fiable articles  amerce  the  people ;  and  those  who  at  mills 
or  markets  take  outragious  toll,  and  those  who  amerce 
the  people  by  presentments  not  made  by  the  whole  de- 
cennary, or  by  others  than  of  freemen. 

Into  this  offence  fall  they  who  do  any  thing  upon 
another's  inheritance  by  evil  covetousness,  or  for  hatred. 

Into  this  offence  fall  counters  who  take  outragious 
salary,  or  not  deserved,  or  who  are  attainted  of  ill  de- 
fence, or  of  other  discontinuance,  and  those  who  deny 
4 


50     OF  HAMSOCKNE,  OR  BURGLARY.  [Ch.  I.,  Sc.  11. 

their  seals  in  judgment,  and  those  who  make  contracts 
which  are  forbidden. 

Into  this  offence  fall  usurers,  who  lend  money  or 
other  things,  through  covetousness  to  take  the  forfeit- 
ure. And  those  who  rob,  or  steal  the  marriages  of 
others,  or  run  aM'ay  with  other's  wives,  or  villains  with 
the  goods  of  others. 

And  all  fore-stallers,  by  whom  victuals  or  cattle  are 
made  dear. 

They  are  forestallers  who  within  any  town  or  fran- 
chise buy  to  engross,  and  unlawfully  to  sell  more  dear ; 
and  those  butchers  who  sell  unwholesome  flesh  for  whole- 
some ;  and  those  fishmongers  who  buy  and  sell  against 
the  established  law ;  and  all  those  of  what  mysteries 
soever  they  be,  who  do  deceitfully  in  their  trade  or  mys- 
teries. 


Sect.   11. 
Of  hamsockne,  or  burglary. 

Burglary  by  an  ancient  ordinance  is  a  mortal  of- 
fence ;  for  the  law  is,  that  every  one  be  at  peace  in  his 
own  house. 

This  offence  is  not  done  only  by  breaking  of  a  house, 
but  is  also  done  by  a  felonious  assault  of  enemies  in  time 
of  peace,  upon  those  who  are  in  their  houses  with  intent 


Ch.  I.,Sc.  [2.]     OF  HAMSOCKNE,  OR  BURGLARY.     51 

to  repose  there  in  peace ;  whether  the  assault  be  to  kill, 
or  to  rob,  or  to  beat  those  who  are  in  rest  within  their 
houses.  And  although  it  be  that  these  offenders  do  not 
accomplish  their  purpose,  if  nevertheless  they  make  any 
breaking  by  their  assault  of  tlie  doors,  windows,  or 
walks,  to  enter  feloniously,  they  are  guilty  of  this  crime. 
Into  this  offence  fall  all  those  who  feloniously  force 
their  entry  into  another's  house,  and  therein  do  any 
violence  against  the  peace  although  they  do  not  break 
the  house,  and  that  as  well  in  llie  day  time  as  the  night; 
and  those  who  disseise  the  people  in  such  case,  or  cast 
them  out  of  their  houses,  and  out  of  their  peaceable 
possessions  wrongfully. 


Sect.   12. 


Rape  is  done  two  ways,  that  is  to  say,  of  things,  and 
of  women.  This  offence  is  here  put  because  king  E.  1. 
by  his  statute  made  it  mortal,  which  is  more  grounded 
upon  the  will,  than  upon  the  discretion ;  for  one  sort  is 
whoredom,  another  fornication,  another  adultery,  an- 
other incest,  and  another  rape;  but  to  speak  properly 
we  are  to  distinguish  of  the  offences  whereof  the  first 
offence  is  greater  than  the  other. 

Whoredom  is  the  deflouring  of  a  married  woman 
feloniously. 


52       OF  THE  OFFICE  OF  THE  CORONERS.  [Ch.  I.,  Sc.  13. 

Pornication  is  to  ravish  women  not  married. 

Adultery  is  to  ravish  another's  wife. 

Incest  is  to  ravish  cousins,  parents,  or  affines. 

Rape  is  properly  the  taking  away  of  a  woman  for  the 
desire  of  marriage. 

Rape  nevertheless  according  to  the  meaning  of  the 
statute  is  taken  for  one  proper  word,  given  for  every 
enforcement  of  a  woman  of  what  condition  soever  she  he. 


Sect.   13. 

Of  the  office  of  the  coroners. 

To  coroners  anciently  were  enjoined  the  keeping  of 
the  pleas  of  the  crown,  which  extend  now  hut  to  felonies 
and   adventures. 


There  are  two  kinds  of  coroners 


'  general 

and 
.  special. 


To  the  office  of  general  coroners  it  belongeth  to  re- 
ceive the  appeals  of  all  the  county,  of  felonies  done 
within  the  year ;  to  award  the  exigents  of  contempts, 
and  to  pronounce  the  judgments  of  outlawries ;  and 
more,  to  enquire  in  what  pledge  they  were,  or  decennary, 
or  of  whom  mainprized,  and  in  whose  ward. 

Special  coroners  are  coroners  of  liberties,  and  of 
privileged  places. 


Ch.  I.,Sc.  13.]    OF  THE  OFFICE  OF  THE  CORONERS.       53 

To  the  ofRce  of  the  one  and  the  otlier  it  doth  be- 
long, to  view  the  carcases  of  the  dead  hy  felony,  or  by 
mischance;  or  to  see  the  hnrnings  and  the  wounds,  and 
the  other  felonies,  that  is  to  say,  every  one  in  his  baili- 
wic ;  and  to  see  treasure  trove  and  wrecks  of  the  sea, 
and  to  take  the  acknowledgments  of  felony,  and  to  give 
the  abjuration  to  flyers  to  snnctuary,  and  to  take  the 
enquests  of  felonies  happening  within  their  bailiwics. 

As  to  the  view  of  the  carcase  of  the  body  of  a  man, 
it  is  his  office  that  so  soon  as  he  shall  be  certified  thereof, 
to  send  to  the  hundred  of  the  place  to  summon  sufficient 
able  men  of  the  next  towns,  that  at  a  short  day  certainly 
named,  they  be  before  him  at  such  a  place,  all  which 
done  the  carcase  is  to  be  viewed ;  and  if  he  find  it  there 
buried,  that  it  be  taken  up,  and  to  the  coroner  it  be- 
longeth  to  record  the  names  of  them  who  buried  him ; 
and  if  it  hath  been  decreased  or  endamaged  by  ill  keep- 
ing, or  lain  so  long  that  it  cannot  be  judged  how  it  came 
by  its  death,  that  the  same  also  be  recorded,  that  this 
negligence  be  punished  at  the  coming  of  the  king,  or 
his  justices  in  Eyre  into  those  parts;  and  if  the  coroner, 
with  the  advice  of  the  people  present  be  able  to  judge 
of  the  death,  tlien  they  are  to  present  the  manner  of  his 
killing,  whether  he  died  of  another's  felony,  or  of  his 
own,  or  by  mischance ;  and  if  of  blows,  whether  of  a 
staff,  or  a  stone,  or  a  weapon ;  and  the  coroner  is  to 
record  in  his  book  the  names  of  those  who  were  sum- 
moned and  appeared  not,  that  the  same  offences  of  dis- 


54      OF  THE  OFFICE  OF  THE  CORONERS.    [Ch.  I.,  Sc.  13. 

obedience  remain  not  unpunished,  whereby  the  coroner 
could  not  at  that  time  do  his  office  for  want  of  jurors. 

In  those  enquests  lie  no  exceptions,  or  challenges  to 
the  persons  of  the  jurors;  but  he  ought  to  make  his 
panels  of  the  discreetest,  and  of  the  ablest  and  best  of 
them,  and  to  see  that  the  carcase  be  buried. 

The  panels  are  to  be  of  decinies ;  for  coroners  at  these 
enquests,  sheriffs  at  their  turns,  bailiffs  at  their  views 
of  frank-pledges,  escheators  and  the  king's  officers  of  his 
forests,  have  power  by  authority  of  their  office  to  send 
for  the  people,  which  none  other  have  without  the  king's 
writ;  and  that  is  for  the  keeping  of  the  peace,  and  for 
the  right  of  the  king,  and  for  the  common  people. 

The  articles  are  these. 

You  shall  by  your  oaths  declare  of  the  death  of  this 
man,  ivhether  he  died  of  felony,  or  by  mischance;  and 
if  of  felony,  whether  of  his  own,  or  of  another's;  and  if 
by  mischance,  whether  by  the  act  of  God  or  of  man;  and 
if  of  famine,  whether  of  poverty,  or  of  common  'pesti- 
lence, and  fronn  whence  he  came,  and  who  he  was;  and 
if  he  died  of  another's  felony,  who  were  principals,  and 
who  accessaries,  and  if  hue  and  cry  ivere  duly  made  or 
not;  and  whether  the  men  fled  according  to  law  or  not, 
and  ivho  threatened  him  of  his  life  or  members,  and 
who  were  sureties  for  the  peace,  or  whether  he  died  of 
long  imprisonment,  or  of  pain,  and  by  whom  he  was 


Cu.  I.,Sc.  13.]     OF  THE  OFFICE  OF  THE  CORONERS.       55 

farther  from  life,  and  nearer  to  his  death;  and  so  of 
all  prevailing  circumstances  that  can  come  by  'presump- 
tions. 

And  in  case  where  he  died  by  hurt,  or  fall,  or  other 
chance  by  ilic  act  of  God,  so  that  he  had  not  power  to 
speak  before  his  death;  then  you  shall  tell  the  names  of 
the  finders,  and  of  his  next  neighbours,  and  who  were 
his  parents,  and  if  he  were  hilled  there  or  elsewhere, 
and  if  elsewhere,  by  whom,  and  how  he  was  thence 
brought,  and  the  value  and  hind  of  the  deodand,  and  to 
whose  hands  it  came ;  for  in  case  a  man  dieth  by  a  fall, 
in  such  case  according  to  Randulf  de  Glanvil,  it  is  or- 
dained, whatsoever  is  cause  of  his  death  is  deodand;  as 
it  is  for  whatsoever  moveth  in  the  thing  whereof  he  fell, 
as  horse,  cart,  mill-stone;  also  vessels  are  sometimes 
deodands  but  not  in  the  sea;  the  sums  upon  the  horses, 
the  goods  lying  in  ships,  mills,  carts  and  houses,  are  not 
accounted  for  deodands. 

And  in  case  of  another's  felony,  then  the  jurors  de- 
clare who  were  the  felons,  in  what  pledge,  dozein,  ward 
or  mainprize  they  were,  and  from  whence  they  came, 
and  where  they  returned. 

And  if  he  was  hilled  by  false  judgment,  then  that 
the  jury  declare  who  were  the  judges,  who  the  officers 
to  form  the  judgment,  and  who  accessaries,  and  if  of 
false  witnesses,  who  were  they,  and  the  jurors. 

And  if  he  died  of  his  own  felony,  then  that  they  tell 
the  manner,  and  the  value  of  his  goods,  and  the  names  of 


56         OF  THE  OFFICE  OF  THE  CORONERS.  [Ch.  I.,  Sc  13. 

his  parents,  and  the  finders,  and  of  the  neighbours,  and 
the  value  of  the  waste. 

There  are  nine  manner  of  accessaries. 

]  Those  who  command.  2  Those  who  conceal, 
3  Those  who  allow  and  consent.  4  Those  who  see  it. 
5  Those  who  help.  6  Those  who  he  partners  in  the 
gain.  7  Those  who  knew  thereof,  and  did  not  inter- 
rupt or  Mulder  it  by  forbidding.  8  Those  who  know- 
ingly receive.     9    Those  who  are  in  the  force. 

Of  misadventures  in  tnrnaments,  in  courts  and  lists^ 
king  Henry  II.  ordained,  that  because  at  such  duels, 
happen  many  mischances,  That  each  of  them  take  an 
oath  that  he  beareth  no  deadly  hatred  against  the  other, 
but  only  that  he  endeavoureth  with  him  in  love  to  try 
his  strength  in  those  common  places  of  lists  and  duels, 
that  he  might  the  better  know  how  to  defend  himself 
against  his  enemies ;  and  therefore  such  mischances  are 
not  supposed  felony,  nor  the  coroners  have  not  to  do 
with  such  mischances  which  happen  in  such  common 
meetings,  where  there  is  no  intent  to  commit  any  felony. 

Coroners  also  ought  to  make  their  views  of  sodomies, 
and  of  monstrous  births  of  children,  who  have  nothing 
of  humanity,  or  who  have  more  of  other  creatures  than 
of  man  ;  and  coroners  were  to  bury  them.  But  the  holy 
faith  doth  more  and  more  now  daily  confirm  men,  that 
they  abstain  to  commit  these  horrible  sins  which  they 
used  to  do.  Also  they  used  to  enquire  of  burnings, 
and  who  put  to  the  fire,  and  how ;  and  whether  it  were 


Ch.  I.,  Sc.  13]    OF  THE  OFFICE  OF  THE  CORONERS.         57 

by  felony  or  mischance;  and  if  of  felony,  of  whose 
felony,  and  who  were  the  principal,  and  who  the  ac- 
cessaries, and  who  were  the  threateners  thereof. 

It  belongcth  to  them  at  their  views  to  enquire  after 
treasure  privately  hidden,  and  found  in  the  ground, 
and  how  the  treasure  was  found,  and  by  whom,  and 
how  much  there  was;  and  if  it  be  all  seised  upon,  or 
all  carried  away,  and  who  carried  it  away,  and  how 
much ;  and  who  were  the  finders  of  it,  and  the  next 
neighbours. 

At  their  views  of  wrecks,  they  ought  to  enquire 
whether  the  wreck  came  to  land,  what  be  the  things, 
and  how  much,  and  the  value  of  them  distinctly  by 
parcels;  and  if  a  man,  a  beast,  cat,  or  other  living  thing 
came  within  it  or  not,  and  that  by  divident  it  be  de- 
livered to  the  next  town,  that  they  may  answer  the  lord 
if  he  come  to  claim  it,  and  receive  it  within  the  vear. 

At  his  view  of  wounds,  it  behoveth  him  that  ho  view 
the  wound,  and  make  a  record  of  the  length,  brcadtli, 
and  depth  of  it,  in  aid  of  the  wounded  if  he  complain, 
in  case  the  wound  be  healed,  the  coroner  of  the  county 
may  help  him  by  the  record.  Also  it  belongeth  to  him 
to  view  burglaries,  and  to  enquire  of  the  names  of  the 
felons,  and  what  they  have  to  live  of,  and  from  whence 
they  came,  or  whether  they  returned ;  and  of  the  niena- 
cors,  and  of  other  circumstances. 

The  jurors  are  severed  into  dozens,  so  that  one  dozen 
speak  not  with  another,  but  that  every  jury  answer  by 


58    OF  THE  OFFICE  OF  THE  CORONERS.  [Ch.  I.,  Sc.  13. 

itself,  and  review  the  presentments  and  the  verdict,  so 
are  they  chargeable,  to  accuse  the  conspirators  who  pro- 
cure to  save  any  offendant,  or  to  indict  an  innocent  in 
such  enquests. 

All  the  verdicts  before  the  coroners  as  well  of  ac- 
cessaries as  of  the  principal  are  at  the  commandment 
of  the  coroners  receivable  by  the  sheriffs,  and  the  prin- 
cipal and  accessaries  are  to  be  taken  and  delivered  to 
mainprisors,  and  in  the  presence  of  them  and  of  the 
sheriffs  their  goods  moveables  and  not  moveables  are  to 
be  seized  into  the  king's  hands,  and  by  a  reasonable  ex- 
tent and  dividend,  the  moveables  are  deliverable  for  the 
finding  of  the  prisoners,  and  for  their  needful  and 
reasonable  sustenance,  and  the  king  to  be  answered  the 
residue,  saving  the  right  both  to  the  principal  if  they 
be  acquitted,  and  to  the  accessaries  by  mainprize. 

And  if  any  one  fly,  or  make  resistance,  and  will 
not  answer  the  law,  it  is  lawful  for  every  one  to  kill 
him,  if  he  cannot  otherwise  apprehend  him. 

And  Bermund  awarded,  that  all  goods  of  those  that 
fled  should  remain  forfeit  to  the  king,  saving  to  every 
one  his  right,  although  that  afterwards  he  yield  him- 
self to  the  peace. 

And  Iselgram  said,  that  he  is  no  flyer  who  appeareth 
in  judgment  before  he  be  outlawed. 

If  any  one  fly  to  sanctuary,  and  there  demand  protec- 
tion, we  are  to  distinguish ;  for  if  he  be  a  common  thief, 
robber,  murderer,  night-walker,  and  be  known  for  such 


Ch.  I.,  Sc.  13.]  OF  THE  OFFICE  OF  THE  CORONERS.        59 

a  one,  and  discovered  by  the  people,  and  of  his  pledges 
and  deziners ;  or  if  any  one  be  convict  for  debt,  or  other 
offence  upon  his  own  confession,  and  hath  forjered  the 
realm,    or    hath    been    exiled,    banished,    outlawed    or 
waived;  or  if  any  one  have  offended  in  sanctuary,  or 
joined  upon  this  ho])e  to  be  defended  in  sanctuary,  tliey 
may  take  him  out  thence  without  any  prejudice  to  the 
franchise  or  sanctuary.      But  in  the  right  of  offenders, 
who  by  mischance  fall  into   an  offence  mortal  out  of 
sanctuary,  and  for  true  repentance  run  t<:)  monasteries, 
and  commonly  confess  themselves  sorrowful,  and  repent, 
such  offenders  being  of  good  fame,  if  they  require  tui- 
tion of  the  church,  king  Hen.  II.  at  Clarendon  granted 
unto  them,  that  they  should  be  defended  by  the  church 
for   the   space  of  forty   days;    and   ordained  that   the 
towns   should   defend   such   flyers   for   the  whole   forty 
davs,  and  send  them  to  the  coroner  at  the  coroners  view. 
It  is  in  the  election  of  the  offender  to  yield  to  the  law, 
or  to  acknowledge  his  offence  to  the  coroners,  and  to  the 
people,  and  to  waive  the  law;  and  if  he  yield  himself  to 
he  tried  by  law,  he  is  to  be  sent  to  the  gaol,  and  to  wait 
for  either  acquittal  or  condemnation ;  and  if  he  confess 
a  mortal  offence,  and  desire  to  depart  the  realm,  without 
desiring  the  tuition  of  the  church,  he  is  to  go  from  the 
end  of  the  sanctuary  ungirt  in  pure  sack-cloth,  and  there 
swear  that  he  will  keep  the  strait  way  to  such  a  port,  or 
such  a  passage  which  he  hath  chosen,  and  will  stay  in 
no  parts  two  nights  together,  until  that  for  this  mortal 


60       OF  THE  OFFICE  OF  THE  CORONERS.    [Ch.  I.,  Sc.  13. 

offence,  which  he  hath  confessed  in  the  hearing  of  the 
people,  he  hath  avoided  tlie  realm,  never  to  return  dur- 
ing the  king's  life  without  leave,  so  God  him  help,  and 
the  holy  evangelists ;  and  afterwards  let  him  take  the 
sign  of  the  cross  and  carry  the  same;  and  the  same  is 
as  much  as  if  he  were  in  the  protection  of  the  church. 

And  if  any  one  remain  in  sanctuary  above  the  forty 
days,  by  so  doing  he  is  barred  of  the  grant  of  abjura- 
tion if  the  fault  be  in  him,  after  which  time  it  is  not 
lawful  for  any  one  to  give  him  victuals. 

And  although  such  be  out  of  the  peace,  and  the  pro- 
tection of  the  king,  yet  none  ought  to  dishearten  them, 
all  one  as  if  they  were  in  the  protection  of  the  church, 
if  they  be  not  found  out  of  the  highway,  or  wilfully 
break  their  oaths,  or  do  other  mischief  in  the  highway. 

If  he  who  is  killed  be  unknown,  in  such  case  the 
coroners  ought  to  shew  the  murdered  cloaths,  according 
to  the  statute  of  king  Kanute,  who  ordained  for  the  safe- 
guard of  his  Danes  whom  lie  left  in  England;  that  if  a 
man  unknown  were  killed,  that  the  whole  hundred 
should  be  amerced  to  the  king  by  the  judgTnent  of  mur- 
der. Four  things  excuse  the  hundred  from  the  judg- 
ment of  murder. 

1  If  the  felon  be  known  who  killed  him,  for  if  the 
felon  be  known,  then  may  he  be  attainted  of  the  felony. 

2  Another,  if  the  felon  be  apprehended,  or  if  he  fly 
to  a  monastery. 


Ch.  I.,  Sc.  13. J  OF  THE  OFFICE  OF  THE  CORONERS.       61 

3  If  tin-  killing  come  not  by  felony,  but  by  mis- 
chance. 

4  Tlie  fourth  in  case  where  a  man  is  a  felon  of  him- 
self, and  because  there  could  be  no  murder  of  a  man  un- 
known, it  belongeth  to  the  coroners  to  enquire  in  those 
felonies  of  what  kindred  or  lineage  those  that  were 
killed  were,  so  that  one  may  know  by  their  parents 
Avhcther  they  were  of  the  English  nation  or  not;  for  if 
no  man  coidd  name  their  parents,  it  was  great  presump- 
tion that  they  were  aliens.  And  thence  it  is  that  one 
callcth  that  parentage  Englisliire,  where  the  parentage 
be  found  of  the  father's  or  of  the  mother's  side ;  and  if 
no  EngHshire  be  found,  then  that  it  hath  the  judgment 
of  murder. 

To  the  office  of  the  coroners  it  also  belongeth  to  re- 
ceive the  confession  of  felons  in  the  hearing:  of  witnesses, 
whereby  of  a  grand  felony  done  by  many  offenders  it 
came  to  pass  in  the  time  of  king  John,  that  one  of  the 
offenders  petitioned  the  king,  that  he  would  pardon  him 
his  life,  for  that  he  had  accused  the  other  offenders  who 
Avere  his  companions,  and  that  the  king  outlawed  them; 
and  at  the  request  of  the  king  the  earls  granted,  that 
in  sanctuaries  only  it  should  I'cuiain  foi-  law,  tliat  of- 
fenders having  confessed  the  felony  might  accuse  others, 
imd  that  it  was  then  ordained,  that  the  coroners  should 
take  such  confessions,  and  such  appeals  but  once,  and 
not  many  times. 

Women  are  not  admitted  to  bring  appeals,  nor  infants 


62  OF  THE  EXCHEQUER.  [Ch.  I.,  Sc.  14. 

within  the  age  of  21  years,  no  ideots,  nor  men  professors, 
nor  clerks  indicted  or  appealed  of  any  crime,  nor  men 
attainted  of  false  appeal,  nor  those  who  are  vanquished 
in  battle,  but  those  who  have  government  of  themselves. 

The  appellees  are  to  be  seised  upon  body  and  goods 
twice  in  the  year,  that  is  to  say,  once  after  Michaelmas, 
and  another  time  after  Easter ;  and  because  sheriffs  to 
do  the  same  make  their  turns  of  the  hundred,  such 
visnes  are  called  the  sheriff's  turns ;  where  it  belongeth 
to  the  sheriff  to  enquire  of  all  personal  offences,  and  of 
all  the  circumstances  of  offences  done  within  the  hun- 
dred ;  and  of  the  wrongs  of  the  king  and  queen's  officers, 
and  of  wrong  done  to  the  king  and  the  common  people, 
according  to  the  articles  aforesaid  in  the  division  of  of- 
fences. 

The  appellees  are  to  be  seised  upon  body  and  goods 
as  aforesaid ;  and  if  any  foreigner  be  appealed  who  is 
out  of  the  power  of  the  coroner,  the  king's  commissary 
is  to  cause  him  to  appear,  or  outlaw  him. 


Sect.   14. 

Of  the  Exchequer. 

The  Exchequer  is  a  place  which  was  ordained  only 
for  the  king's  revenue,  where  two  knights,  two  clerks, 
and  two  learned  men  in  the  law  are  assigned  to  hear 


Ch.  I.,  Sc.  15.]  OF  INFERIOR  COURTS.  63 

and  determine  wrongs  done  to  the  king  and  crown  in 
right  of  his  fees,  and  the  franchises  and  the  accompts 
of  bailiffs,  and  receivers  of  the  king's  monies,  and  of  the 
administrators  of  his  goods,  by  the  oversight  of  one 
chief,  who  is  the  treasurer  of  England. 

The  two  knights  iisually  called  two  barons,  were  for 
to  affeer  the  amercements  of  earls,  barons,  and  of  the 
tenants  of  earldoms  and  baronies,  so  that  none  be 
amerced  but  by  his  peers. 

To  this  place  there  was  a  seal  assigned,  with  a  keeper 
of  it,  to  make  acquittances  upon  every  payment  to  those 
who  desired  them,  and  to  seal  writs  and  escheats  under 
green  wax  issuing  from  thence  for  the  king's  revenue. 

In  this  place  there  are  also  chamberlains  and  many 
other  officers,  who  belong  not  very  much  to  the  law. 


Sect.  15. 

Of  inferior  courts. 

From  the  first  assemblies  came  consistories  which 
we  now  call  courts,  and  that  in  divers  places,  and  in 
divers  manners ;  whereof  the  sheriffs  held  one  monthly, 
or  every  five  weeks,  according  to  the  greatness  or  large- 
ness of  the  shires.  And  these  courts  are  called  county 
courts,  where  the  judgment  is  by  the  suitors  if  there  be 
no  writ,   and   is  by  warrant  of  jurisdiction  ordinary. 


(54  OF  INFERIOR  COURTS,  [Ch.  I.,  Sc.  15. 

The  other  inferior  courts  are  the  courts  of  every  lord 
of  the  fee,  to  the  likeness  of  hundred  courts;  and  also 
in  fairs  and  markets,  where  right  is  to  be  ministered 
without  delay,  whether  the  matter  concern  plaintiff  or 
defendant,  according  to  the  first  ordinances;  in  which 
courts  they  have  conusance  of  debts,  covenants  broken, 
and  of  trespasses,  and  of  such  small  things  which  pass 
not  forty  shillings  value ;  and  also  they  have  conusance 
of  trespasses,  and  forfeitures  of  the  fees  betwixt  the 
lords  plaintiffs  and  the  tenants  defendants,  Et  e  contra. 

There  are  other  inferior  courts  which  the  bailiffs 
hold  in  every  hundred,  from  three  weeks  to  three  weeks 
by  the  suitors  of  the  freeholders  of  the  hundred.  All 
the  tenants  within  the  fees  are  bounden  to  do  their  suit 
there,  and  that  not  for  the  service  of  their  persons,  but 
for  service  of  their  fees. 

But  women,  infants  within  the  age  of  21  years,  deaf, 
dumb,  ideots ;  those  who  are  indicted  or  appealed  of  any 
mortal  felony  before  they  be  acquitted,  diseased  persons, 
and  excommunicated  persons  are  exempted  from  doing 
suit,  and  although  it  be  that  such  freeholders  may  do 
suits  at  inferior  courts  by  their  attornies,  nevertheless 
the  judgment  is  not  to  be  given  or  holden  for  foreign; 
and  if  any  plea  be  removed  by  writ  of  justices,  re- 
plegiare,  waste,  or  of  other  nature,  that  enable  the  juris- 
diction from  which  the  writ  is  originally  sent,  and  re- 
turnable. 


Ch,  I.,  Sc.  16. J     OF  THE  SHERIFFS  TURNS.  55 

Sect.   16. 
Of  the  sheriffs  turns. 

The  sheriffs  by  ancient  ordinances  hold  several  mePl- 
ing  twice  in  the  year  in  every  hundred,  where  all  the 
freeholders  within  the  hundred,  are  bound  to  appear  for 
the  service  of  their  fees;  that  is  to  say,  once  after 
Michaelmas,  and  another  time  after  Easter;  and  because 
sheriffs  to  do  this  make  their  turn  of  hundreds,  such 
appearances  are  called  the  sheriffs  turns,  where  it  be- 
longeth  to  sheriffs  to  enquire  of  all  personal  offences, 
and  of  all  their  circumstances  done  within  those  hun- 
dreds, and  of  all  wrongs  done  by  the  king  and  queen's 
officers,  and  of  wrongs  done  to  the  king,  and  to  the  com- 
mon people,  according  to  the  points  aforesaid  in  the 
division  of  offences. 

All  freeholders  within  the  hundred  are  not  bounden 
to  appear  at  these  courts,  for  king  Henry  3  excused 
some  persons,  and  said,  that  it  was  not  needful  that 
archbishops,  bishops,  abbots,  priors,  earls,  barons,  re- 
ligious persons,  nay  such  people,  nor  other  who  were 
exempted  to  do  suit  at  inferior  courts  should  appear  in 
proper  person,  if  their  appearance  were  not  necessary 
for  some  other  cause  than  only  to  make  their  appear- 
ance. And  if  any  one  hath  divers  tenements  in  divers 
hundreds,  his  presence  is  not  to  be  excused  notwith- 
standing the  king's  grant. 

5 


QQ  OF  VIEWS  OF  FRA2rK-PLEDGES.  [Ch.  L,  Sc.  17. 

Sect.  17. 

Of  views  of  f rank-pledges. 

Of  these  first  assemblies  it  was  also  ordained,  that 
every  hundred  do  make  a  common  meeting  once  in  the 
year,  not  only  of  the  freeholders,  but  of  all  persons 
within  the  hundred,  strangers  and  denizens  of  the  age 
of  12  years  and  upwards,  except  of  archbishops,  bishops, 
abbots,  priors,  religious  persons,  and  all  clerks,  earls, 
barons  and  knights,  feme  coverts,  deaf,  dumb,  sick, 
ideots,  infected  persons,  and  those  who  are  not  in  any 
dozein,  to  enquire  of  the  points  aforesaid,  and  of  the 
articles  following,  and  not  by  villains,  nor  by  women, 
but  by  the  affeerment  of  freemen  at  the  least ;  for  a  vil- 
lain cannot  indict  a  freeman,  nor  any  other  who 
is  not  receivable  to  do  suit  in  inferior  courts ;  ^nd  there- 
fore it  was  anciently  ordained,  that  none  should  re- 
main in  the  realm  if  he  were  not  in  some  decennary,  and 
pledge  of  freemen ;  it  belongeth  also  to  hundredors  once 
a  year  to  shew  the  frank-pledges,  and  the  pledgers,  and 
therefore  are  the  views  called  the  view  of  frank-pledges. 

The  articles  are  these. 

By  the  oaths  you  have  taken,  you  shall  declare 
whether  all  they  who  ought,  do  appear  or.not. 

If  all  the  freemen  of  the  hundred,  or  of  the  fees  be 
present. 


Ch.  I.,  Sc.  IT.J  THE  ARTICLES.  67 

If  all  tlie  frank-'pledges  have  their  dozeins  entire, 
and  all  those  who  they  have  in  pledge. 

If  all  those  of  the  hundred,  or  of  the  fees  of  the  age  of 
12  years  and  above,  have  sworn  fealty  to  the  king,  and 
of  the  receivers  of  others  wittingly. 

Of  all  bloodsheds,  of  hue  and  cry  wrongfully  levied, 
or  rightfully  levied  and  not  duly  pursued,  and  of  the 
names  of  the  pursuers;  of  all  mortal  offences,  and  of 
their  kinds,  and  as  well  of  the  principals  as  of  the  ac- 
cessaries. 

Of  all  exiles,  outlaws,  waifs,  and  banished  persons 
returned,  and  who  have  since  received  them,  and  of 
those  who  have  been  judged  to  death,  or  abjured  the 
realm. 

Of  usurers,  and  of  all  tlicir  goods. 

Of  treasure  trove,  wrecks,  waifs,  estrays,  and  of  every 
purpresture  and  encroachment  upon  the  king,  or  upon, 
his  dignity. 

Of  all  wrongs  done  by  the  king's  officers  and  others 
to  the  common  people,  and  of  all  purprestures  in  com- 
mon places,  in  the  land,  or  in  the  water,  or  elsewhere. 

Of  boundaries  removed  to  the  common  nusance  of 
the  people. 

Of  every  branch  of  the  assize  of  bread,  bear,  wine, 
clothes,  weights,  measures,  beams,  bushels,  gallons,  ells 
and  yards,  and  of  all  false  scales,  and  of  those  who  have 
used  them. 

And  of  those  who  have  bought  by  one  kind  of  meas- 


08  THE  ARTICLES.  [Ch.  I.,  Sc.  17. 

ure,  and  sold  by  another  kind  in  deceit  of  merchants  or 
buyers. 

Of  the  disturbers  of  framing  lawful  judgments,  and 
of  the  framers  of  wrongful  judgments,  and  of  the  abet- 
tors and  consenters  thereunto. 

Of  ever'y  wrongful  detinue  of  the  body  of  a  man,  or 
other  distress. 

Of  every  false  judgment  given  by  the  view  in  the 
other  hundred,  or  in  the  fee. 

Of  every  forestalment  done  in  the  common  highway. 

Of  wrongful  replevies,  and  wrongful  rescouses. 

Of  every  outragious  distress  in  another  fee,  or  in  the 
market  for  a  foreign  contr^act. 

Of  all  bridges  broken,  and  causeys,  ways,  common 
bridges,  and  who  ought  for  to  repair  them. 

Of  the  makers  of  cloaths  dwelling  out  of  great  towns 
in  places  forbidden. 

Of  tanners  and  curriers  of  leather. 

Of  butchers,  and  who  sell  unwholesome  flesh  for  that 
which  is  sound,  and  of  all  those  who  sell  corrupt  ivine 
for  sound  wine;  or  beer,  ale,  raw  and  not  well  brewed, 
for  that  ivJiich  is  good  and  wholesome. 

Of  small  larcenies. 

Of  cutters  of  purses. 

And  of  those  luho  suffer  people  to  use  any  mystery 
for  reward  or  fee. 

Of  receivers  of  thief -boot. 

Of  the  makers  and  haunters  of  false  dice. 


Ch.  I.,  Sc.  17.1  THE  ARTICLES.  69 

Of  outrag'ious  toll-takers,  and  of  all  other  deceivers. 

Of  all  manner  of  conspirators. 

And  of  all  other  articles  availahle  for  the  destruction 
of  offenders. 

And  the  presentments  are  to  he  sealed  with  the  seal 
of  the  jurors,  so  that  none  by  fraud  do  increase  or  di- 
minish them;  and  that  which  cannot  he  redressed  there 
hy  these  presentments,  is  presentahle  at  the  sheriffs  first 
turn;  and  those  things  which  the  sheriffs  cannot  redress 
are  to  he  presented  hy  the  sheriffs  into  the  Exchequer. 

All  those  who  are  presented  for  any  offence  which  is 
mortal,  and  hanished  persons  who  are  returned,  and 
their  receivers,  and  those  ivho  are  not  in  allegiance 
under  the  king,  are  to  he  seised  upon,  and  their  goods 
to  he  seised  into  the  king's  hands. 

And  although  it  he  so  that  the  hailiff  cannot  hear  and 
determine  any  action  at  the  leet,  nevertheless  if  any  one 
present  he  grieved  hy  any  lurongfnl  presentment,  and 
complain  thereof,  or  if  the  hailiff  or  steward  have  a 
suspicion  that  the  jurors  he  in  some  case  perjured  hy 
concealing  of  any  offence  which  is  presentable,  or  of 
any  offender;  it  is  lawful  for  the  bailiffs  (or  stewards) 
hy  twelve  more  discreet  men,  to  enquire  of  the  truth 
thereof  without  delay,  and  although  that  the  last  jurors 
say  that  the  first  are  perjured,  nevertheless  because  that 
no  decennary  or  juror  is  not  atlestahle  with  Jess  than 
tivo  juries;  and  because  the  later  jury  is  not  taken  hut 
ex  officio  of  the  hailiff,  and  not  in  the  nature  of  an 


10 


THE  ARTICLES. 


[Ch.  I.,  Sc.  17. 


attaint  J  the  first  jurors  are  not  to  be  taken  attainted, 
hut  are  only  to  he  a7nerced. 

And  if  any  one  profer  himself  to  swear  fealty  to  the 
Jcing,  he  is  first  to  be  -pledged  in  some  frank-pledge  and 
put  in  the  decennary ;  and  afteriuards  sworn  to  the  king, 
and  then  he  is  forbidden  to  offend  and  commune  with 
the  offenders,  and  he  is  to  he  enjoined  to  be  obedient  to 
his  chief  pledge. 

And  to  take  this  oath  in  those  views  is  none  exempted 
who  is  past  the  age  of  21  years,  man  or  ivoman,  clerk 
nor  layman,  except  aliens  strangers,  messengers,  or  mer- 
chants, and  those  who  are  in  custody. 

At  these  views  of  turns,  and  vieivs  of  frank-pledges 
essoins  hold,  where  the  absence  of  those  who  cannot  be 
there  is  excusable,  and  such  essoins  are  adjournahle  to 
the  7iext  courts  following,  that  the  essoiners  have  their 
warrants. 


THE  CONTENTS  OF  THE  SECOND  CHAPTER. 


Section  Page 

Of  actions i  73 

Of  judges .  ii  74 

Of  plaintiffs iii  75 

Of  rewards  or  fees iv  78 

Of  pleaders  or  countees v  79 

Of  attacliments    vi  81 

Appeals,  and  to  vvliom  appeal  is  given vii  SS 

Of  process  of  exigent  in  appeals viii  8."> 

Of  gaols  and  gaolers ix  86- 

Of  bails  in  appeals x  88 

Of  the  appeal  of  majesty xi  88 

Appeal  of  falsifying xii  90 

Of  appeals  of  treason xiii  91 

Of  appeals  of  burning xiv  93 

Of  the  appeals  of  murder xv  93 

Of  the  appeals  of  robbery  and  larceny xvi  95 

Of  the  appeal  of  burglary xvii  96 

Of  the  appeal  of  imprisonment xviii  96 

Of  the  appeal  of  mayhem xix  97 

Of  the  appeal  of  wounding xx  97 

Of  the  appeal  of  rape xxi  98 

Of  real  offences  at  the  king's  suit xxii  98 

Of  offences  personal  at  the  king's  suit xxiii  101 

Of  venal  offences  and  personal  suits xxiv  103 

Of  the  assize  of  novel  disseisin xxv  103 

Of  distresses xxvi  113 

Of  contracts xxvii  118 

Of  villenage  and  neifty    xxviii  123 

Of  summons xxix  128 

Of  essoins. .. .    xxx  130 

Of  attornies xxxi  137 

72 


CHAPTER  II. 

Sect.  I. 

Of  actions. 

When  it  is  said  that  kings  and  princes  have  the  gov- 
ernment and  correction  of  offenders,  with  aid  of  the 
prelates;  and  to  that  intent  they  are  God's  vicegerents 
on  earth,  and  to  do  the  same  they  have  jurisdiction 
over  the  offenders  by  pains,  and  chiefly  those  offenders 
which  are  imder  their  jurisdiction ;  nevertheless  kings 
cannot  nor  ought  not  to  take  notice  of  the  offences  of 
others  without  actions  of  accusers,  which  well  appeareth 
by  the  example  which  God  shewed  when  he  was  in  his 
consistory,  and  demanded  who  was  the  accuser  of  the 
woman-sinner;  and  because  none  presented  himself  an 
accuser  against  her,  to  give  us  a  perpetual  example  that 
right  judgment  cannot  be  given  without  there  be  three 
persons  at  the  least,  viz.  a  judge,  a  plaintiff,  and  a  de- 
fendant, God  said  to  the  woman-sinner,  That  she  should 
go  in  peace  or  quiet,  since  it  belongeth  not  to  a  judge, 
to  be  both  judge  and  plaintiff,  and  therefore  it  behoveth 
to  speak  of  actions,  and  who  are  and  may  be  judges,  and 
who  plaintiffs,  and  who  defendants. 

73 


74  OF  JUDGES.  [Ch.  II.,  Sc.  3. 

An  action  is  nothing  else  but  a  lawful  demand  of 
right,  and  there  are  three  manner  of  actions  which  have 
their  introductions  by  writs,  and  by  plaints  in  manner 
as  foUoweth,  viz.  personal,  real,  and  mixt. 


Sect.  2. 
Of  judges. 


All  those  who  are  not  forbidden  by  law  may  be 
judges.  To  women  it  is  forbidden  by  law  that  they 
be  judges ;  and  thence  it  is,  that  feme  coverts  are  ex- 
empted to  do  suit  in  inferior  courts.  On  the  other 
part  a  villain  cannot  be  a  judge  by  reason  of  the  two 
estates  which  are  repugnant ;  persons  attainted  of  false 
judgment  cannot  be  judges,  nor  infants,  nor  any  under 
the  age  of  21  years,  nor  infected  persons,  nor  ideots,  nor 
mad-men,  nor  deaf,  nor  dumb,  nor  parties  in  the  pleas, 
nor  men  excommunicated  by  the  bishop,  nor  criminal 
persons ;  for  God  when  he  was  upon  earth  entered  into 
the  consistory  where  a  sinner  was  to  be  judged  to  death, 
when  God  wrote  upon  the  ground,  and  said  to  the  suitors 
who  came  to  judge  her,  Who  of  you  is  without  sin?  and 
there  gave  a  judgment  as  an  example  to  judges,  who  take 
upon  them  every  day  to  judge  the  people,  whereby  he 
taught  them,  that  none  should  take  upon  themselves 
so  high  and  noble  a  calling,  as  to  sit  in  the  seat  of  God 


Ch.  II.,  Sc.  3.]  OF  PLAINTIFFS.  75 

to  jiulge  offenders,  when  they  themselves  are  guilty  and 
eondemnable. 

And  those  who  are  not  of  the  Christian  faith  cannot 
be  judges,  nor  those  who  are  out  of  the  king's  allegiance ; 
next,  those  who  have  no  commission  from  the  king  can- 
not be  judges,  nor  none  whose  authority  is  repealed, 
nor  any  one  after  judgment  is  given  in  the  cause;  an  ex- 
ample thereof  appearetli  in  the  writ  of  right,  et  nisi 
feceris,  vicecomes  facial;  nor  none  after  death,  or  the 
return  ;  none  whose  warrant  is  vicious,  not  any  one  if 
his  superior  will  not  have  him.  A  judge  commissary 
hath  not  power  to  judge  but  according  to  the  points,  and 
within  the  words  of  his  commission,  and  the  original 
writ,  no  more  than  the  arbitrary  judge  hath  power  to 
go  beyond  the  points  of  his  submission. 


Sect.  3. 
Of  plaintiffs. 

Plaintiffs  are  those  who  pursue  their  right  against 
others  by  plaint. 

All  may  be  accusers  or  plaintiffs  who  are  not  forbid- 
den by  the  law. 

Infected  persons,  ideots,  infants  within  age  cannot 
accuse,  or  be  plaintiffs  without  their  guardians,  nor 
criminal  persons,  nor  an  outlawed,  exiled  or  banished 


76  OF  PLAINTIFFS.  [Ch.  II.,  Sc.  3. 

person,  nor  a  woman  waive,  nor  a  villain  without  his 
lord,  nor  a  feme  covert  without  her  husband,  nor  re- 
ligious persons  without  their  sovereigns,  nor  persons 
excommunicate,  nor  deaf  nor  dumb  persons  without 
their  guardians,  nor  the  judges  of  the  cases  whereof 
they  are  judges,  nor  any  one  who  is  not  of  the  king's 
allegiance,  so  as  he  hath  been  more  than  forty  days 
within  the  realm,  except  approvers  who  are  suffered  to 
accuse  criminally  people  of  his  own  condition  in  favour 
of  the  peace. 

How  laivful  men  ought  to  complain. 

They  ought  in  friendly  manner  to  shew  their  offend- 
ers, that  is  to  say,  their  trespassers,  that  they  reconcile 
or  amend  themselves  towards  them ;  and  if  they  will  not 
do  so,  and  the  cause  be  criminal,  then  ye  are  to  dis- 
tinguish ;  for  if  any  one  seek  revenge,  then  it  behoved 
him  to  bring  his  action  by  appeal  of  felony ;  and  if  he 
seeketh  only  reparation  of  damages,  then  he  behoveth  to 
bring  his  action  by  writ,  which  is  to  contain  the  name 
of  the  king,  and  of  the  parties,  and  the  name  of  the 
judge,  and  of  the  county,  and  the  plaint  in  the  demand^ 
if  the  damages  or  the  demand  exceed  forty  shillings; 
and  if  not,  then  a  plaint  sufficeth  without  a  writ.  And 
because  all  suits  of  the  plaintiffs  could  not  be  deter- 
mined upon  the  first  preferring  of  the  suits,  nor  the 
suitors  or  the  plaintiffs  presently  relieved  in  their  suits. 


Ch.  II.,  So.  3.]  OF  PLAINTIFFS.  77 

Therefore  kings  used  to  go  from  county  to  county  every 
seven  years,  to  enquire  of  offences  and  trespasses,  and 
of  wrongs  done  to  themselves  and  to  the  crown  and  to 
the  common  people ;  and  of  all  wrongs,  errors,  and  neg- 
ligences of  their  officers,  and  of  all  false  judgments; 
of  pains  pardoned  or  wrongfully  judged,  or  outra- 
giously ;  of  outlaws  returned,  and  of  their  receivers,  of 
the  values  of  counties  out  of  hundreds,  towns,  manors, 
and  of  moveable  goods  which  Ix'long  to  the  king,  and 
to  the  crown  ;  of  the  lands  of  ideots,  of  alienators  of 
fees,  of  offences  against  the  king's  inhibition,  of  privi- 
leges and  franchises  prejudicial  to  the  king;  of  bridges 
and  highways,  and  of  all  other  needful  articles;  and 
they  used  to  do  right  to  all  persons  by  themselves,  or 
l)y  their  chief  justices ;  and  now  kings  do  the  same  by 
the  justices  commissaries  in  Eyre,  assigned  to  hold  all 
pleas. 

In  aid  of  such  Eyres  are  sheriff  turns  needful,  and 
views  of  frank-pledges,  and  when  the  people  by  such 
enquests  were  indicted  of  any  mortal  offence,  the  king 
used  to  condemn  them  without  answers,  which  usage 
still  remaineth  in  Almaine;  but  of  pity  and  mercy,  and 
because  that  man  by  reason  of  his  frailty  cannot  keep 
himself  from  sin,  (if  he  abstain  not  from  it  by  the  grace 
of  God),  it  was  accorded  that  no  appellee  nor  indictee 
should  be  condemned  without  answer.  And  kings  had 
no  jurisdiction  but  of  mortal  offences,  and  of  the  rights 
of  the  crown,  and  of  their  own  rights,  and  of  the  wrongs 


78  OF  REWARDS  AND  FEES.        [Ch.  II.,  Sc.  4. 

of  their  ministers,  and  of  wrongs  done  against  com- 
mon law,  and  common  ordinances,  and  the  articles  of 
Eyres. 


Sect.  4. 
Of  rewards  and  fees. 

Kings  used  to  give  rewards  to  the  chief  of  the  stock, 
and  to  all  those  who  faithfully  served  them ;  and  from 
the  rewards  of  kings  others  took  example  to  reward 
their  servants ;  and  because  no  freeman  was  bounden 
to  serve  ag'ainst  his  will,  by  reason  whereof  none  were 
bound  to  serve  the  king  or  any  other  but  by  the  service 
of  his  fee,  or  by  reason  of  his  residence  or  dwelling  in 
another  fee ;  some  are  bound  to  serve  the  king  for  a  cer- 
tainty by  the  year.  And  it  is  not  lawful  for  those  of- 
ficers who  take  wages  certain  of  the  king,  to  take  any 
wages  of  the  people. 

But  the  judges  who  serve  the  king,  it  is  lawful  for 
them  to  take  twelve  pence  of  the  plaintiff  after  the 
hearing  of  the  cause  and  no  more,  although  there  be 
two  judges,  or  two  plaintiffs  in  one  action :  and  the 
pleader  six-pence,  and  a  knight  sworn  a  witness,  four- 
pence,  and  every  juror  four-pence,  and  the  two  sum- 
ners  four-pence. 

!N^evertheless  in  the  time  of  king  Henry  I.  it  was  or- 


Ch.  II.,  Sc.  5. J  OF  COUNTORS  OR  PLEADERS.         79 

dained  and  assented  unto,  that  jurors  sworn  upon  en- 
quest  of  office,  as  in  assizes,  recognizances  of  assizes,  re- 
disseisins,  certificates  of  asssize,  and  attaints,  and  other 
the  like  should  not  take  fees  because  they  did  the  same 
ex  officio;  and  to  answer  these  monies,  and  the  damages, 
are  the  defendants  chargeable,  if  judg-ment  be  given 
against  them. 

And  to  those  who  followed  any  suit  for  the  king's 
profit,  and  were  not  any  of  his  ministers,  king  Henry 
I.  gave  to  them  the  twentieth  part  of  the  profit  with 
their  reasonable  costs.  In  like  manner  the  judge  was 
not  to  hear  the  plaintiff's  cause,  if  he  put  not  in  security 
to  answer  his  adversary's  damages,  if  he  complain  of, 
him  wrongfullv. 


Sect.  5. 
Of  countors  or  pleaders. 

There  are  many  who  know  not  how  to  defend  their 
causes  in  judg-ment,  and  there  are  many  Avho  do,  and 
therefore  pleaders  are  necessary,  so  that  that  which  the 
plaintiffs  or  actors  cannot,  or  know  not  how  to  do  by 
themselves,  they  may  do  by  their  Serjeants,  attornies, 
of  friends. 

Countors  are  Serjeants  skilful  in  the  laws  of  the 
realm,  who  serve  the  common  people  to  declare  and  de- 


go         OF  COUNTORS  OR  PLEADERS.  [Ch.  II.,  Sc.  5. 

fend  actions  in  judgment,  for  those  who  have  need  of 
them,  for  their  fees. 

Every  pleader  of  other  causes  ought  to  have  a  regard 
to  four  things.  1  That  there  be  a  person  receivable 
in  judgment,  that  he  be  no  heretic,  excommunicate  per- 
son, nor  criminal,  nor  a  man  or  religion,  nor  a  woman, 
nor  within  the  orders  of  a  sub-deacon,  nor  a  beneficed 
clerk  who  hath  cure  of  souls,  nor  under  the  age  of  21 
vears,  nor  judge  in  the  same  cause,  nor  attainted  of 
falsity  in  his  place. 

2  Another  thing  is,  that  every  countor  is  chargeable 
by  the  oath  that  he  shall  do  no  wrong  nor  falsity  con- 
trary to  his  knowledge,  but  shall  plead  for  his  client, 
the  best  he  can  according  to  his  understanding. 

3  The  third  thing  is,  that  he  put  no  false  dilatories 
into  court,  nor  false  witnesses,  nor  move  or  offer  any 
false  corruptions,  deceits,  leasings  or  false  lies,  nor  con- 
sent to  any  such,  but  truly  maintain  his  client's  cause, 
so  that  it  fail  not  by  any  negligence  or  default  in  him, 
nor  by  any  threatening,  hurt,  or  villainy  disturb  the 
judge,  plaintiff,  Serjeant,  or  any  other  in  court,  whereby 
he  hinder  the  right,  or  the  hearing  of  the  cause. 

4  The  fourth  thing  is  his  salary,  concerning  which 
four  things  are  to  be  regarded;  1  The  greatness  of 
the  cause.  2  The  pains  of  the  serjeant.  3  His 
worth,  as  his  learning,  eloquence  and  gift.  4  The 
usage  of  the  court. 

A  pleader  is  suspendable  when  he  is  attainted  to  have 


Ch.  II.,  So.  6.]  OF  ATTACHMENTS.  81 

received  fees  of  two  adversaries  in  one  cause ;  and  if  he 
say  or  do  any  thing  in  despite  or  contempt  of  the  court; 
and  if  he  fall  under  any  of  the  points  aforesaid,  besides 
the  exceptions  which  are  to  the  person  of  the  pleader; 
for  no  man  be  a  pleader  who  cannot  be  a  plaintiff  or 
actor. 


Sect.  6. 
Of  attachments. 

Personal  actions  have  their  introductions  by  attach- 
ments of  the  body;  real  by  summons  and  mixt  actions; 
first  by  summons  and  afterwards  by  attachments. 

The  law  requireth  that  offenders  in  case  of  death 
have  not  such  mitigation  or  favour  that  they  be  brought 
or  summoned,  or  distrained  to  appear  in  judgment  by 
taking  of  their  cattle,  if  the  offenders  be  known,  and 
notorious,  and  the  plaintiff  pursue  them  so  soon  as  he 
may.  And  if  any  one  fly  for  such  offence,  then  accord- 
ing to  the  statute  of  Winchester  he  was  to  be  followed 
with  hue  and  cry,  with  horn  and  voice,  so  that  all  those 
of  one  town  who  can  are  to  follow  the  felon  to  the  next 
town ;  and  if  any  such  felon  be  attaint  and  convict  of 
the  felony,  let  him  be  killed  if  he  cannot  be  otherwise 
apprehended.  But  it  is  otherwise  in  felonies  not 
known,  for  it  is  not  lawful  to  kill  tlie  offender  without 
bis  answer,  if  he  may  be  taken  alive. 


82  OF  ATTACHMENTS.  [Ch.  II.,  Sc.  6. 

And  if  any  one  would  complain  to  have  revenge,  or 
to  drive  the  offender  to  the  salvation  of  his  sonl,  let  him 
go  to  the  coroner  of  the  place  where  the  offence  was 
done,  and  set  forth  his  complaint  there  as  he  will  prove 
it,  and  the  coroner  is  to  canse  the  same  to  be  distinctly 
enrolled ;  and  if  he  cause  him  to  record  it  as  murder, 
being  corrupted  to  destroy  his  neighbour  by  his  plaint; 
so  that  he  have  judgment,  the  like  is  to  be  done  to  him 
if  he  prove  not  his  plaint. 

At  the  next  court,  after  the  appeal  is  enrolled,  it  be- 
longeth  to  such  plaintiffs  to  recite  their  appeals,  and  to 
find  sureties  to  pursue  them,  or  to  remain  in  prison  till 
they  have  found  bail,  and  to  the  main-prisors  such 
plaints  are  to  be  delivered  by  coroners  body  for  body, 
that  they  shall  pursue  their  appellees,  and  to  cause 
them  to  appear  in  court  to  receive  justice  when  they 
shall  be  demanded,  if  they  do  not  prove  their  appeals. 

The  personal  offences  are  these: 

Imprisonment. 

Mayhem. 

Wounding. 

Battery. 

Perjury. 

Usury. 

Rescousses. 

Forestallings. 

Breaking  of  paries. 


Ch.  II.,  Sc.  7.]     APPEALS,  AND  TO  WHOM,  ETC.  83 

Resistance  of  framing  lawful  judgments. 

Executions  of  false  judgments,  and  all  wrongful  of- 

ences. 
Carrying  away   of   treasure    trove,   of   wrecks,   waifs^ 

estrays. 

The  attachments  of  mortal  offenders  are  by  their 
bodies  without  sureties,  and  the  attachments  of  venal 
personal  offenders  are  also  by  their  bodies,  but  yet  they 
are  bailable. 

Real  offences  are  those  upon  which  are  grounded 
writs  of  right,  of  cosinage,  of  dower,  of  right  of  ad- 
vowson,  of  entry,  of  escheat,  writs  of  Quo  jure,  of  for- 
medon,  and  of  all  writs,  feodals. 

Mixt  offences  are  those  upon  which  these  writs  are 
framed,  viz.  of  customs  and  services,  of  villanage,  of 
covenants,  of  homage,  of  rendering  distresses,  of  mesne 
and  other  acquittances,  of  escheats,  and  the  like,  and  by 
reason  of  the  mixture  of  their  introductions  they  are 
called  mixt. 


Sect.  7. 

Appeals,  and  to  whom  appeal  is  given. 

The  action  of  appeal  is  not  given  to  all  alike,  but 
every  one  is  allowed  to  have  his  action  of  trespass  to 
whom  any  trespass  is  done,  except  such  as  cannot  have 
any  action  at  all. 


84  APPEALS,  AND  TO  WHOM         [Ch.  II.,  Sc.  7. 

Every  one  may  have  an  appeal  of  burning  to  whom 
the  damage  is  done,  and  the  property  of  the  thing  burnt 
doth  belong. 

Parents,  kindred,  and  allies,  used  to  be  admitted  to 
bring  appeals  of  murder ;  but  the  appeal  of  the  wife  of 
the  killing  of  her  husband  is  to  be  received  before  all 
other ;  and  yet  not  of  all  his  wives,  but  of  her  only  who 
lieth  betwixt  his  arms,  which  is  as  much  as  to  say  in 
Tvhose  seisin  he  was  murdered ;  for  if  he  had  many 
"wives,  and  all  were  alive  at  the  time  of  his  murder; 
nevertheless  she  only  is  admitted  to  bring  the  appeals  of 
all  the  rest  whom  he  last  took  to  be  his  wife,  although  in 
right  she  be  not  his  wife ;  and  the  reason  thereof  is,  be- 
cause it  belongeth  not  to  the  temporal  court  to  try,  which 
was  his  wife  of  right,  and  which  in  fact ;  and  the  ap- 
peals of  all  other  are  to  be  suspended,  pendant  the  same 
appeal  brought. 

After  the  appeal  of  the  wife  is  the  appeal  of  the  son 
lawfully  begotten,  of  the  murder  of  his  father,  to  be 
received  before  all  other,  it  is  said  (lawfully  begotten) 
because  a  bastard  is  not  to  be  accounted  amongst  sons, 
for  the  common  law  only  taketh  him  to  be  a  son  whom 
the  marriage  proveth  to  be  so. 

After  the  appeal  of  the  eldest  son,  the  appeal  of  the 
next  of  blood  is  used  to  be  received,  and  so  from  one 
degree  to  another  in  the  right  line  of  coinage ;  and  if 
the  blood  fail  in  that  line,  then  they  of  the  colateral 
line  are  admitted  to  bring  the  appeal;  or  the  kindred 


Ch.  II.,  Sc.  7.]  APPEAL  IS  GIVEN.  85 

■where  the  blood  faileth,  according  to  the  degrees  of  con- 
sanguinity and  affinity,  and  especially  in  the  line  of  the 
father's  side ;  but  the  appeals  of  murder  were  restrained 
by  king  Henry  I.  to  the  four  next  degrees  of  blood. 

And  if  any  one  within  the  age  of  21  years  do  bring 
an  appeal,  the  defendant  is  not  bound  to  answer  so  high 
an  action  until  he  hath  passed  that  age ;  and  therefore 
such  appeals  are  to  be  suspended  till  both  the  parties 
of  full  age,  if  exception  in  the  case  be  taken  to  the 
nonage. 

Men  and  women,  clerks  and  laymen,  infants  and 
others,  of  what  condition  soever  they  be,  may  bring  ap- 
peals, except  those  who  are  not  suffered  to  bring  any 
actions ;  and  although  it  be  tliat  many  do  bring  appeals, 
yet  one  nevertheless  is  admitted  to  continue,  and  pen- 
dant that,  all  the  others  are  to  be  suspended.  And  in 
all  cases  the  appeals  against  the  accessaries  are  to  be 
suspended,  pendant  the  appeal  against  the  principal,  be 
it  one  or  many. 


Sect.  8. 

Of  process  of  exigent  in  appeals. 

At  the  first  countv  the  coroner  is  to  do  no  more  but 
to  enter  the  pledges  who  properly  are  main-prisors,  and 
to  command  that  such  take  the  appeals,  and  seize  all 


86  OF  GOAL  AND  GOALEES.  [Ch.  II.,  Sc  9. 

their  possessions  and  their  goods  into  the  king's  hands, 
as  before  is  said;  and  if  they  be  taken,  that  they  be 
kept  till  due  deliverance  be  of  them,  and  if  they  be  not 
to  be  found,  and  the  plaintiff  come  at  another  county, 
and  recite  his  appeal  or  appeals,  then  are  such  appellees 
demandable  only  by  their  names,  and  by  such  names 
as  they  are  best  known  by,  that  they  appear  to  answer 
the  king's  peace ;  for  if  any  one  be  appealed  as  son  of  the 
father,  and  is  known  by  another  Sir-name,  the  appeal 
is  in  sufficient,  and  by  consequence  abatable  at  the  peril 
of  the  plaintiff ;  and  at  the  third  county  they  are  to  be 
demanded  in  like  manner  as  before,  at  which  county 
court  if  the  appellees  appear  not,  nor  are  taken  into 
main-prize  to  appear  at  the  next  court,  judgment  is  to 
be  given  against  them  for  their  contempt  by  the  cor- 
oners; and  those  who  do  appear  before  judgment  of  the 
coroner,  are  presently  to  be  delivered  over  to  the  gaol, 
where  they  are  to  be  received  without  difficulty  of  fine, 
or  request. 


Sect.  9. 
Of  gaol  and  gaolers, 

A  GAOL  is  nothing  else  but  a  common  prison,  and  as 
a  leper,  or  a  man  who  hath  a  diseased  body,  is  not  to 
be  suffered  to  dwell  or  remain  amongst  men  who  are 


Gh.  II.,  Sc.  9.]     OF  GOAL  AND  GOALEES.  §7 

sound ;  so  mortal  sin  is  a  kind  of  leprosy  which  maketh 
the  soul  abominable  unto  God,  and  therefore  such  mor- 
tal sinners  or  offenders  ought  to  be  separated  from  the 
society  of  the  people.  And  to  the  end  that  innocents  be 
not  infected  with  their  offences,  gaols  were  ordained 
in  every  county  to  keep  such  mortal  offenders  in,  there 
to  remain  till  judgment  were  given  against  them  in 
case  the  offences  were  notorious. 


There  are  two  kinds  of  prisons 


common, 
and 
,  private. 


Every  common  prison  is  a  gaol,  and  none  hath  a 
gaol  but  the  king  only. 

A  private  prison  is  another  prison,  from  whence 
every  one  may  escape  who  can,  so  as  he  do  no  other 
trespass  in  the  escape.  None  are  imprisoned  in  a  com- 
mon prison  but  for  a  mortal  offence,  and  therefore  it 
was  forbidden  by  king  Henry  III.  That  none  should 
levy  money  for  any  escape  in  the  land,  if  the  escape 
were  not  adjudged  before  the  justices  in  Eyre,  whether 
for  the  same  a  corporal  or  a  pecuniary  punishment  were 
awardable  or  not ;  and  because  it  is  forbidden  that  none 
be  pained  before  judginent,  the  law  requireth,  that  none 
be  put  amongst  vermine,  or  in  any  horrible  nor  dan- 
gerous place,  nor  into  any  other  pain;  but  it  is  lawful 
for  gaolers  to  fetter  those  they  doubt,  so  as  the  fetters 
weigh  no  more  than  12  ounces ;  and  to  enable  the  keep- 


88       OF  PEOPLE  BAILABLE  IN  APPEALS.  [Ch.  II.,  Sc.  10, 

ing  of  those  in  the  gaol  who  are  violent,  outragious,  or 
do  other  trespass  there. 


Sect.  10. 
Of  people  bailable  in  appeals. 

Some  appeals  of  mortal  offences,  although  they  are 
not  bailable  by  law,  nevertheless  they  are  suffered  to  be 
bailed  when  they  are  brought  into  the  gaol ;  as  namely, 
the  appeals  of  murder,  robbery,  burglary,  larceny,  or 
out  of  prison,  where  it  is  found  that  they  are  wrong- 
fully appealed,  and  for  such  case  was  the  writ  de  odio 
et  atia  invented. 

Those  who  are  condemned  to  have  corporal  punish- 
ment are  not  to  be  bailed ;  but  it  is  otherwise  of  those 
who  are  imprisoned  for  a  fine,  or  any  pecuniary  penalty 
or  punishment. 


Sect.  11. 

Of  the  appeal  of  majesty. 

Of  the  crimes  of  majesty,  nor  of  falsifying,  nor  of 
any  thing  which  concerneth  the  king's  right,  there  lieth 
no  appeal,  but  actions  or  indictments. 


I 


Ch.  II.,  Sc.  10.]     OF  THE  APPEAL  OF  MAJESTY.  gg 

For  slanders  of  sodomy,  our  ancient  fathers  would 
never  agree  thus  for  the  scandals  of  so  doing,  that  any 
one  should  bring  actions  by  way  of  accusation,  nor  in- 
dictments, nor  would  ever  assent  that  they  should  be 
heard  of  in  regard  of  the  abominablcness  of  the  sin ; 
but  they  ordained,  that  such  notorious  sinners  should 
be  forthwith  judged,  and  judgments  framed  against 
them. 

Of  the  imagining  of  the  king's  death,  and  of  other 
kind  of  offences  of  majesty  against  an  earthly  king, 
there  Avere  accusations  but  for  indictments;  for  every 
true  subject  was  with  all  expedition  to  shew  the  same 
to  the  king,  so  that  he  be  not  taken  or  seised  upon  by 
his  long  stay,  or  by  great  delay,  in  what  cases  the 
accusations  are  to  be  received ;  and  in  full  parliament  let 
the  accuser  by  himself,  or  by  a  serjeant  do  it,  according 
as  it  was  done  in  this  case  in  the  time  of  king  Edmond 
in  these  words. 

Rocelyn  here  saith  against  WalUgrot,  That  at  such 
a  day,  in  such  a  year  of  the  reign  of  such  a  king,  into 
such  a  place  came  the  said  Walligrot  to  this  Rocelyn, 
and  found  him  to  be  in  counsel,  and  in  assistance  with 
Arbeling,  TurMlle,  Ballard  and  others,  to  arrest,  or  to 
make  prisoner,  or  to  kill  our  lord  king  Edmord,  and 
to  do  the  same  they  were  sworn  to  keep  counsel,  and 
to  commit  this  felony  according  to  their  power. 


90  APPEAL  OF  FALSIFYING.     [Ch.  II.,  Sc.  12. 

Sect.   12. 
[Ajypeal  of  falsify mg. 

This  offence  is  not  openly  done,  it  is  seen  by  a  false 
writ,  or  false  money  found  in  one's  possession,  and  al- 
though that  three  persons  are  necessary  in  judgment  in 
this  case,  nevertheless  it  is  ordained,  that  the  possessor 
of  ill  things  he  by  the  judge  ex  officio  driven  to  answer 
to  the  title  of  their  possession  thereof,  which  is  not  so 
in  all  cases. 

And  if  there  be  any  one  who  will  not  plead  to  judg- 
ment, then  he  is  to  be  returned  to  the  gaol,  and  all  his 
goods  are  to  be  seised  into  the  king's  hands,  and 
to  be  seised  upon  as  in  all  criminal  actions  brought  by 
appeals  or  indictments ;  also  in  venal  actions  such  con- 
tumacers  used  to  be  condemned  for  not  pleading,  as  by 
their  pleading  and  lawful  attainder. 

And  if  any  one  saith  that  he  came  to  the  money  law- 
fully, and  doth  not  know  by  whom,  nor  none  offer  them- 
selves against  him  to  prove  the  affirmative  of  the  action ; 
then  it  belongeth  to  the  possessor  of  the  money  to  prove 
the  affirmative  of  his  answer. 

And  if  any  one  saith,  that  it  came  to  him  from  a  man 
certain,  let  it  be  as  after  herein  is,  said. 


Ch.  II,,  So.  13.]       APPEALS  OF  TREASON.  91 


Sect.   13. 
Of  appeals  of  treason. 

Treason  is  set  forth  in  appeals  in  this  manner  ac- 
cording as  it  is  found  in  the  rolls  in  the  time  of  king 
Alfred. 

Bardulf  here  doth  appeal  Dirling  there  for  that,  that 
in  as  much  as  this  same  Dirling  was  the  ally  of  the  same 
Bardvlf,  the  said  Dirling  came  such  a  day  of  the  year, 
etc.,  and  during  the  alliance  ravished  the  wife  of 
the  same  Bardulf,  or  counterfeited  his  seal;  or  did  him 
some  other  mischief.  Or  thus;  Hahenson,  father,  or 
other  parent,  or  lord,  or  ally,  this  Dirling  killed;  or 
thus,  remained  in  aid,  and  in  counsel  with  Daffray,  the 
adversary  of  this  Bardvlf,  in  speech  which  touched  the 
loss  of  his  life,  or  members,  or  of  his  earthly  honour; 
or  thus,  discovered  his  counsel  or  his  confession;  or 
thus,  whereas  he  ought  to  have  a  lawful  inrolment  ac- 
cording to  law  of  such  a  plea,  the  same  Dirling  falsely 
inrolled  the  same  to  his  dis-inherison,  or  otherwise  to 
his  damage;  or  thus,  whereas  he  was  his  attorney  in 
such  a  plea,  before  such  judges  to  gain  or  lose,  and 
should  have  done  him  right,  he  lost  by  his  default,  or 
by  his  folly,  negligence  or  collusion,  or  restored  the 
thing   in    demand,   or   did  him  such   hurt.     Or   thus, 


92  APPEALS  OF  TREASON.      [Ch.  II.,  Sc  13. 

whereas  he  should  have  excused  him,  or  essoined  him 
sueh  a  day,  etc.,  he  suffered  him  to  lose  the  possession, 
or  such  other  thing  through  his  default ;  or  thus,  whereas 
he  ought  to  have  truly  spoken  for  him  in  such  a  case, 
the  said  Dirling  did  ill  advise  him,  or  speak  against  him 
in  such  a  point;  and  afterwards  thus,  this  treason  did 
the  said  Dirling  feloniously  as  a  felon,  and  traitorously 
as  a  traitor,  and  if  he  will  deny  it,  Bardulf  is  ready  to 
prove  it  upon  him  by  his  body ;  or  as  a  mayhemed  man, 
or  a  woman,  or  a  clerk  ought  to  prove. 

And  although  that  advice  be  given  to  some,  that  it 
belongeth  not  to  the  plaintiff  to  shew  the  proof  of  his 
action,  until  it  be  denied  of  the  adverse  party  to  hasten 
right,  nevertheless  such  usage  is  suffered,  as  in  this 
case  following,  and  others  it  is;  as,  if  any  sheriff  or 
other,  take  one  to  be  bail  or  surety  for  another,  and  he 
denieth  it,  it  behoveth  the  plaintiff  to  say  that  he 
wrongfully  denieth  it,  and  therefore  wrongfully;  for 
in  such  a  year,  such  a  day,  and  before  such  a  one,  of 
his  own  will  he  became  pledge  for  such  a  one,  and  the 
plaintiff  to  hasten  his  business  suffered  to  she\^  the 
same  in  his  declaration,  and  if  he  denieth  it,  etc.,  the 
answer  of  the  adverse  party  is  suffered  to  he  taken,  and 
afterwards  he  is  to  go  to  proof  by  his  replication. 


Ch.  II.,  Sc.  14. J     OF  APPEAL  OF  BURNING.  93 

Sect.  14. 

Of  appeal  of  hurning. 

The  appeals  of  burning  are  in  this  manner ;  Ceddc 
here  appealeth  Harding  there  (which  he  sir-names)  for 
that,  that  whereas  this  same  Cedde  had  one  house,  or 
divers;  or  a  stack  of  corn,  or  of  hay,  or  a  mill,  or  other 
manner  of  goods  in  such  a  place ;  or  thus,  whereas 
Wetad,  father  or  mother  of  this  Cedde  was  in  such  a 
place  such  a  day,  etc.,  the  same  Harding  came  thither, 
and  put  fire  into  the  house,  and  burnt  the  said  \Vetad 
therein,  Avhereof  he  died ;  and  this  felony  the  said 
Harding  did  feloniously. 


Sect.   15. 

Of  the  appeal  of  murder. 

Of  the  offence  of  murder,  the  appeals  are  such ; 
Knotting  here  appealeth  Carting  thus  ;  that  where  Cady, 
father,  brother,  son  or  uncle  of  this  Knotting  was  in 
God's  peace  and  the  king's,  scil.  in  such  a  place,  the 
same  Carting  came  thither,  and  the  same  day  and  year, 
etc.,  with  a  sword,  or  other  kind  of  weapon  run  him 


94  OF  THE  APPEAL  OF  MURDER,     [Ch.  II.,  Sc.  15, 

through  the  body,  gave  him  such  a  wound,  in  such  a  part 
of  his  body  whereof  he  died ;  this  murder  he  did  upon 
malice  forethought  feloniously,  etc.,  or  thus,  with  a 
hatchet,  or  with  a  stone,  or  a  staff  struck  the  said  Cady 
upon  the  head,  or  elsewhere,  of  which  stroke  he  died 
such  a  day,  at  such  a  place,  etc.,  or  thus,  that  where  the 
same  Cady  was  hurt,  in  such  a  part  of  his  body,  of  a 
curable  wound ;  or  had  such  a  sickness,  or  curable  dis- 
ease, and  put  himself  to  curing  of  this  Carling,  who 
said  he  was  a  physician ;  the  said  Carling  came,  and 
took  upon  him  the  recovery  of  the  said  Cady,  who  by 
his  folly,  negligence,  etc.,  feloniously  killed  him ;  or 
thus,  so  long  delayed  his  deliverance,  whereby  he  killed 
him  ;  or  thus,  hung  him,  or  feloniously  killed  him,  or 
falsly  judged  Regicald  who  first  attainted  the  twelve 
jurors,  witnesses,  who  wrongfully  hanged  Gordian  her 
husband  by  24  jurors,  who  afterwards  by  several  ap- 
peals hanged  the  first  12  jurors ;  or  thus,  pained  him  so 
much  to  make  him  confess,  and  .to  be  an  approver,  that 
he  falsly  acknowledged  himself  to  have  offended,  and 
made  him  to  appeal  innocents  of  crime,  so  that  it  lay 
not  in  Carling  that  the  same  Knotting  was  not  adjudged 
to  death ;  or  thus,  whereas  the  said  Knotting  lay  may- 
hemed  upon  his  bed,  and  was  reckoned  so  young,  or  so 
old,  or  so  sick  that  he  could  not  go,  the  said  Carling, 
came  and  carried  the  said  Knotting  from  such  a  place, 
such  a  day,  etc.,  to  such  a  water,  ditch,  marle-pit  or 
desert,  and  therein  threw  him,  and  so  left  him  without 


Ch.  II.,  Sc.  16. J     APPEALS  OF  ROBBERY,  ETC.  95 

help  or  sustenance,  so  as  he  did  as  much  as  lay  in  him, 
that  he  was  not  there  dead  of  famine ;  this  mischance  he 
did  unto  him  feloniously,  as  a  felon,  etc. 


Sect.   16. 
Appeals  of  robbery  and  larceny. 

The  appeals  of  robbery  are  these;  Ofmond  here  ap- 
lealeth  Saxemond  there,  that  whereas  this  Ofmond  had 
a  horse  of  such  a  price,  the  said  Saxemond  came  such  a 
day  and  robbed  him  of  his  horse,  etc.,  or  of  such  a  gar- 
ment of  such  a  price  feloniously,  or  of  two  oxen  of  such 
a  price,  or  other  kind  of  goods  of  such  a  price,  etc.,  he 
received  the  said  goods  so  stolen,  or  was  aiding,  or  con- 
senting thereunto. 

Of  larceny  thus:  Armelwolde  here  appealeth  Osker- 
rill  there :  that  whereas  he  had  such  goods,  namely,  etc., 
he  feloniously,  and  as  a  thief  stole  them  away. 

In  these  actions  meet  two  rights,  the  right  of  the 
possession,  as  of  the  thing  robbed  or  stolen  out  of  his 
possession  who  had  no  right  in  the  property,  as  of  things 
taken  from  the  bailee  or  lessee ;  and  the  right  of  the 
property  as  it  is  of  a  thing  stolen  or  robl)ed  out  of  the 
possession  of  him  who  hath  the  property  in  the  thing. 


96  APPEAL  OF  BURCtLARY,  ETC.      [Ch.  II.,  Sc.  17. 

Sect.  17. 

Of  the  appeal  of  burglary. 

Of  burglary  are  these  appeals;  Athalf  here  appeal- 
etli  Colgrum  there;  that  whereas  the  said  Athalf  was  in 
such  a  place  in  peace,  etc.,  thither  came  the  said  Col- 
grum,  and  with  force  and  arms  assaulted  his  house,  and 
in  such  a  part  brake  it,  or  did  such  like  other  violence 
feloniously,  etc. 


Sect.   18. 

Of  the  appeal  of  imprisonment. 

Of  the  appeal  of  imprisonment  thus;  Darling  here 
appealeth  Wiloc  there;  for  that  whereas  the  said  Dar- 
ling, etc.,  the  said  Wiloc  came  and  arrested  the  said 
Darling,  and  brought  him  to  such  a  place,  or  at  such  a 
day,  and  put  him  into  the  stocks ;  or  in  irons,  or  in  other 
pain,  or  inclosure,  from  such  a  day  until  such  a  day, 
€tc.,  or  thus,  contrary  to  sufficient  bail  offered  by  him, 
in  a  case  bailable  detained  him,  or  after  judgment  given 
for  his  deliverance  from  such  a  day  to  such  a  day,  this 
felony  he  did  feloniously,  etc. 


i 


Ch.  II.,  Sc.  19.  J     OF  APPEALS  OF  MAYHEM,  ETC.  97 

Sect.   19. 

Of  appeals  of  mayliein. 

Appeals  of  mayhem  are  these ;  Umbred  here  appeal- 
eth  Maimawood  there ;  for  that  whereas  the  said  Um- 
hred,  etc.,  the  same  Maimawood  came  and  made  an  as- 
sault upon  him  of  fore-thonght  malice,  and  armed  in 
such  a  manner,  cut  off  the  foot,  or  the  hand  of  the  said 
Umbred,  or  with  such  a  staff  struck  him  upon  the  head 
whereby  he  pierced  the  scull  of  liis  head,  or  with  a 
stone  struck  out  his  three  fore  teeth,  whereby  he  may- 
hemed  him;  this  mayhem  he  did  feloniously,  etc. 


Sect.  20. 

t 

Vf  the  appeal  of  wounding. 

Of  wounding  are  these  appeals;  Earnings  here  ap- 
pealeth  Olif  there ;  that  whereas  the  said  Earnings,  etc. 
the  said  Olif  with  such  a  weapon  struck  him,  and 
wounded  him  in  such  a  part  of  his  body,  which  wound 
contained  so  much  in  length,  so  much  in  breadth,  and 
so  much  in  depth ;  and  this  wound  he  gave  him  felo- 
niously. 


98  APPEAL  OF  RAPE,  ETC.  [Ch.  II.,  So.  21. 

Sect.  21. 

Appeal  of  rape. 

An  appeal  of  rape  is  in  this  manner;  Arneborough 
here  appealeth  Atheling  there ;  for  that  whereas  the  said 
Arneborough,  etc.,  the  said  Atheling  came,  and  with 
force  cast  her  down,  and  in  despite  of  her,  feloniously 
ravished  her ;  and  because  that  every  rape  used  not  to 
be  holden  for  a  mortal  offence,  no  appeal  was  thereof, 
if  therein  she  did  not  say,  and  took  away  her  virginity. 


Sec.  22. 

Of  offences  real,  at  the  king's  suit. 

There  are  many  who  seek  not  absolution,  notwith- 
standing they  have  offended  against  the  king  mortally ; 
and  therefore  because  the  king  is  bound  ex  officio  to 
compel  them  to  salvation,  the  king  used  every  seven 
years  to  go  through  all  shires  in  his  realm,  to  make 
enquiry  according  as  before  is  said ;  further,  in  aid  of 
such  Eyres  were  coroners,  sheriffs  turns,  views  of  frank- 
pledges and  other  enquests  to  enquire  of  those  offenders 
as  is  said. 


Ch.  II.,  Sc.  22.]     OP'  OFFENSES  REAL,  ETC.  S9 

But  because  some  are  wrongfully  slandered,  king 
Hennj  I.  ordained,  that  none  should  be  arrested  nor  im- 
prisoned for  slander  of  mortal  offence,  before  he  were 
thereof  indicted  by  the  oaths  of  honest  men,  before 
those  who  had  authority  to  take  sucii  indictments,  and 
then  they  were  first  to  be  seised  upon  by  their  bodies, 
and  goods,  as  in  appeals,  and  to  be  kept  in  prison  till 
they  cleared  them  of  the  infamy  before  the  king  or  his 
justices. 

Of  the  crime  of  majesty  in  no  kind  was  any  indict- 
ment but  of  heresy  or  Romery,  whereof  if  any  were 
indicted  and  brought  to  judgment,  let  there  be  an  in- 
dictment for  the  king  by  some  of  his  people  in  tiiis  man- 
ner, according  to  that  which  is  found  in  the  rolls  of 
ancient  kings. 

I  say  Sebourge  there  is  defamed  by  good  poeple  of 
the  sin  of  heresy,  because  that  he  of  evil  art,  and  belief 
forbidden,  and  by  charms  and  enchantments  he  took 
from  Brighten  by  name,  etc.,  the  flower  of  his  ale, 
whereby  he  lost  the  sale  thereof,  so  that  judgment  be  not 
given  of  less  than  three  persons ;  or  thus.  Moiling  who 
is  there  defamed  by  good  people,  that  such  a  day  he 
denied  his  baptism,  and  caused  himself  to  be  circum- 
cised, and  became  a  Jew,  or  a  Saracen,  or  offered  or 
sacrificed  to  Mahomet  in  contempt  of  God,  to  the  dam- 
nation of  his  soul ;  and  this  offence  he  did  feloniously, 
etc.,  and  so  in  every  like  case  for  the  king;  and  if  he 
will  deny  it  I  am  ready  to  prove  it  upon  him  for  the 


100  OF  OFFENSES  REAL,  ETC.     [Ch.  IT.,  Sc.  22. 

king,  as  to  the  king  it  belongeth  to  do ;  that  is  to  say,  ac- 
cording as  an  infant  within  age. 

Of  falsifying  thus ;  I  say  for  the  king,  that  Mimunde 
there  is  defamed,  etc.,  for  that  he  such  a  day,  etc.,  fal- 
sified the  king's  seal,  or  his  money,  in  such  a  kind,  or 
such,  etc. 

Of  trespesses  indictments  now  cease ;  of  burnings  thus, 
I  say,  etc.,  that  Seahriglit  there  is  defamed,  etc.,  for 
that  at  such  a  day,  etc.,  he  set  a  fire  such  a  house  or 
goods,  etc. 

Of  murder  thus,  I  say,  etc.,  that  such  a  one,  with 
such  a  weapon  struck  Agole  in  such  a  part  of  his  body, 
by  which  stroke  he  is  killed,  etc. 

The  degrees  of  accessaries  are  to  be  shewed  after  the 
principals  according  to  their  right. 

Of  larceny  in  this  manner;  I  say,  that  Cutbert  there, 
etc.,  robbed  such  a  man  known,  or  unknown  of  his 
horse,  or  of  other  kind  of  goods,  etc.,  or  feloniously 
stole,  or  was  consenting  to  the  offence  of  such  thieves 
known,  or  of  unknown  thieves  by  taking  of  thief-boot 
which  is  a  receipt  of  larceny,  which  he  wittingly  took 
to  suffer  such  a  one  to  pass,  or  to  stop  suit,  or  wrongfully 
to  procure  his  pardon. 


Ch.  II.,  Sc.  23.]     OFFENSES  AT  THE  KING'S  SUIT.  IQl 

Sect.  2a. 
Of  offences  personal  at  the  king's  suit. 

A  PEESONAL  offence  is  divided  into  two  branches, 
whereof  the  one  extendeth  to  persons,  and  the  other  to 
goods. 

The  venial  offence  which  extends  to  persons  is  divid- 
able  into  great  offences,  and  small  offences ;  and  al- 
though the  king  have  conusance  of  all  offences  yet  he 
reserveth  only  the  ordering  of  all  gross  offences  to  him- 
self, and  the  conusance  of  the  lesser  he  leaves  to  all 
those  men  who  have  courts  within  their  demesnes;  and 
upon  this  division  of  offences  hath  the  king  established 
the  peace,  so  as  such  lords  and  bailiffs  have  the  order- 
ing of  the  peace  for  small  offences. 

The  venial  offences  personal  are  these;  perjury  when 
one  telleth  a  lie  against  the  king;  and  perjury  of  his  of- 
ficers, the  mortal  offences  not  declared  feloniouslv,  as 
imprisonment,  mayhem,  wounding,  battery,  are  to  be 
shewed  without  appeals,  alienation  of  old  treasure 
found,  disseisin,  re-disseisin,  and  many  others ;  the  dec- 
larations of  personal  offences,  venials,  infamatories,  are 
to  be  declared  at  the  king's  suit  in  this  manner. 

I  say  for  our  lord  the  king,  that  T.  there  is  perjured, 
and  lieth  against  the  king;  that  whereas  the  said  T. 
was  the  king's  chancellor,  and  was  sworn  that  he  should 


102  OFFENSES  AT  THE  KING'S  SUIT.     [Ch.  II.,  Sc.  23. 

not  sell  nor  deny  right,  nor  remedial  writ  to  any  plain- 
tiff, the  said  T.  such  a  day,  etc.,  and  sold  to  such  a  one 
a  writ  of  attaint,  or  other  remedial  writ,  and  would  not 
grant  it  him  for  less  than  half  a  mark,  etc.,  or  thus, 
whereas  he  was  one  of  his  judges  assigned,  and  w^as 
sworn  to  do  justice,  etc.,  he  in  this  manner,  in  such  a 
court  gave  judgment,  or  awarded  against  such  a  party, 
or  released  such  a  party,  or  usurped  such  jurisdiction 
upon  the  king;  or  made  himself  judge,  coroner,  or 
sheriff,  bailiff,  or  other  minister  of  the  king's,  without 
warrant ;  or  thus,  whereas  he  was  chancellor  of  the  Ex- 
chequer, etc.,  he  forbad  to  give  an  acquittance  of  so 
much  as  such  a  one  had  paid  of  the  king's  debt  under 
the  Exchequer  seal,  or  delayed  to  give  an  acquittance 
from  such  a  day  till  such  a  day,  and  would  not  give  an 
acquittance  unless  he  bought  it  for  so  much  ;  or  thus,  for 
that  he  holdeth  plea  against  the  king  forbidding,  or  in 
prejudice  of  the  king  and  his  crown,  and  the  rather 
seeing  it  belongeth  not  to  any  ecclesiastical  judge  to  hold 
secular  pleas,  but  only  of  testamentary  and  of  matri- 
mony ;  or  thus,  he  disturbed  the  giving  of  judgment,  or 
surceased  so  to  do  justice  by  negligence,  or  by  his  con- 
sent. 

In  this  manner  are  the  presentments  to  be  made  at 
the  king's  suit,  of  personal  wrongs  of  all  his  ministers 
great  and  small ;  and  also  against  all  others  not  his  min- 
isters, of  all  wrongs  done  to  the  king  by  those  who  have 
sworn  fealty  to  him. 


CH.  II.,  So.  24.]     OF  VENIAL  TRESPASSES,  ETC.  103 

Sect.  24. 
Of  venial  trespasses,  and  personal  suits. 

To  those  who  have  cause  of  action,  and  will  not  pur- 
sue revenge  according  to  their  rights,  by  actions  of 
trespass  to  recover  damages  for  the  trespasses;  never- 
theless ye  are  to  distinguish  where  the  trespass  is  done 
to  the  person  of  a  man,  and  where  to  his  goods. 

And  if  to  a  man's  person,  every  one  may  have  an 
action  to  whom  the  trespass  is  done,  except  those  who 
can  maintain  no  action  w^ithout  their  guardians. 

And  if  to  the  goods,  then  ye  are  to  distinguish 
whether  to  his  proper  goods,  or  to  the  goods  which  he 
hath  with  others  in  common. 

And  if  to  the  proper  goods,  then  to  distinguish  if 
proper  to  a  man,  or  belonging  to  another  thing,  as  to 
the  crowm,  or  to  any  church. 

If  to  a  man,  then  to  distinguish  if  to  a  man  free  of 
himself,  or  to  a  man  w^ho  is  in  ward. 

And  if  to  a  man  free  of  himself  he  hath  several  ac- 
tions, and  if  proper  to  any  other  in  ward,  the  action  be- 
longetli  to  the  guardian. 

If  to  a  man  in  ward,  the  action  belongeth  to  the  guar- 
dian, or  to  the  next  of  kin,  parent,  affine  or  ally  of  his 
name,  to  the  use  of  him  who  is  in  ward. 

Of  goods  which  are  in  common  no  several  action  lieth, 


104  OF  VENIAL  TRESPASSES,  ETC.     [Ch.  II.,  Sc.  24 

and  therefore  of  goods  which  belong  to  men  of  religion, 
the  action  belongeth  to  the  sovereign  of  the  house,  in 
his  name  for  him  and  his  covenant,  or  in  his  own  name, 
and  the  name  of  him  who  is  in  his  custody,  if  the  action 
be  an  action  personal,  venial. 

And  there  is  a  difference  betwixt  actions  which  are 
to  cause  death,  and  pardonable  actions,  for  as  much  as 
to  mortal  actions  the  suit  is  to  be  brought  first  against 
the  principals,  and  afterwards  against  the  accessaries ; 
and  in  venial  actions  of  personal  trespasses,  all  ought  to 
be  comprehended  in  the  plaint  in  common,  the  princi- 
pals, the  commanders,  the  conspirators,  and  the  acces- 
saries, for  as  much  as  a  man  shall  not  recover  several 
damages  by  several  plaints  thereof;  nevertheless  none 
of  the  accessaries  is  to  plead  to  the  action  before  the 
principal  hath  pleaded,  or  be  condemned  for  his  con- 
tempt. 

Personal  trespasses  used  to  be  heard  and  determined 
in  inferiour  courts  of  lords  of  fees,  and  then  the  offend- 
ers were  attachable  by  their  bodies,  and  they  used  to 
keep  them  and  bring  them  to  judgment,  if  they  were 
not  bailed,  without  offending  the  law. 

The  remedial  writ  of  trespass  requireth  bail  to  them, 
which  whosoever  could  not  find  was  to  remain  in  cus- 
tody Avithout  his  keeper,  because  they  were  bound  to 
acquit  their  pledges. 

And  if  any  nevertheless  become  pledges  of  their  own 
will  in  such  cases,  they  are  to  be  taken ;  but  if  they  are 


Ch.  II.,  Sc.  24.]     OF  VENIAL  TRESPASSES,  ETC.  105 

thereby  endamaged  by  non-suit  of  the  party,  they  had 
no  recovery  against  the  principal  surety;  a  pursuing 
may  be  in  divers  manners,  sometimes  by  pledges,  as  it 
is  of  those  who  can  find  them;  sometimes  by  trusting 
them,  as  it  is  in  case  of  foreigners  and  poor,  who  have 
not  ability  to  find  pledges;  and  sometimes  by  the  bodies 
of  the  plaintifi"s,  as  it  is  of  appellees,  who  have  no  other 
sureties  but  the  four  walls  of  the  prison. 

And  for  the  dureness  which  is  used  to  be  done  to 
the  bodies  of  offenders  in  personal  offences,  or  venial, 
king  Henry  I.  ordained,  that  they  should  arrest  them 
first  by  their  bodies,  until  they  justify  themselves  by 
bail,  and  if  they  be  not  found,  and  if  they  do  not  dis- 
charge their  bail,  they  are  then  to  be  distrained  by  their 
lands  to  the  value  of  the  demand,  and  if  they  then  make 
default,  their  lands  are  to  be  delivered  over  to  the 
plaintiffs,  until  they  have  made  satisfaction  by  a  rea- 
sonable extent,  if  before  they  have  not  acquitted  them- 
selves by  law. 

Of  pledges,  note  that  those  are  pledges  for  pursuing 
who  the  plaints  affirm,  and  those  are  pledges  who  re- 
prieve an}'  other  thing  besides  the  body  of  a  man,  for 
they  are  not  properly  pledges,  but  main-prisons,  be- 
cause they  suppose  that  those  plevisables  are  delivered 
to  them  by  bail  for  the  body. 

The  ordinary  declaration  of  venial  plaints  begin.';  in 
this  form ;  I  shew  unto  you  who  am  here,  that  E.  who 
is  there,  wrongfully  delayed  his  action,  by  false  essoin 


106  OF  ASSIZE  OF  NOVEL  [Ch.  II.,  Sc.  26. 

which  he  cast  such  a  day,  in  such  a  j^lace,  etc.,  to  the 
great  damage  of  the  plaintiff. 

And  of  trespasses  done  against  the  king's  peace  it  is 
easy  to  shew,  and  of  trespasses  done  against  lords  or 
bailiffs,  and  in  hatred  of  false  plaints,  king  Henry  I. 
ordained,  that  audience  were  forbidden  to  plaintiffs  in 
venial  actions,  and  that  none  was  bounden  to  answer 
such  actions,  if  they  had  not  present  proof  of  a  laAvful 
suit. 

And  there  is  such  a  difference  between  a  criminal 
action  in  pleading  and  a  venial,  that  if  a  Serjeant  put 
these  words,  scil.  (feloniously  as  a  felon,  etc.)  in  decla- 
rations of  venial  actions,  the  declarations  are  vitious 
and  abateable,  because  that  no  judge  hath  power  by  a 
venial  plaint  to  determine  felony ;  and  in  the  same  man- 
ner is  the  count  vitious  and  abateable,  where  the  count 
is  upon  the  right  of  property,  and  upon  the  plea  of  pos- 
session, Et  e  contra,  and  there  are  some  actions  wherein 
no  declaration  or  count ;  as  in  disseisin,  re-disseisin, 
certifications  of  assize,  false  judgments  and  attaints. 


Sect.  25. 

Of  assize  of  novel  disseisin,  and  re-disseisin. 

Amongst  other  personal  trespasses,  it  is  not  to  be 
forgotten  to  make  mention  of  disseisin,  of  which  it  is 


Ch.  II.,  Sc.  25.]     DISSEISIN,  AND  RE-DISSEISIN.  107 

needful  first  to  see  to  the  title,  why  it  is  called  assise  of 
novel,  disseisin. 

An  assize  in  one  case  is  nothing  else  but  a  cession  of 
the  justice,  in  another  case  it  is  an  ordinance  of  cer- 
tainty, where  nothing  could  bo  more  or  less  than  right, 
for  the  great  evils  which  are  used  to  be  procured  in  wit- 
nessing, and  the  great  delays  which  were  in  the  exami- 
nations, exceptions  and  attestations,  Randolphus  de 
Glanvile  ordained  this  certain  assize,  that  recognitions 
should  be  sworn  by  12  jurors  of  the  next  neighbours, 
and  so  this  establishment  was  called  assize.  In  the 
third  case  assize  is  taken  properly  for  an  action  in  four 
manner  of  pleas  possessories : 


Scil. 


Novel  disseisin. 
Mortd' ancestor. 
Darrien  presentment. 
Juris  utruni. 


But  such  assize  are  called  petit  assizes,  to  make  a  dif- 
ference from  grand  assizes,  for  the  law  concerning  fees 
is  grounded  upon  two  rights,  of  possession,  and  prop- 
erty. 

And  as  the  grand  assize  serveth  to  the  right  of  prop- 
erty, so  the  petit  assize  serveth  to  the  right  of  possession, 
and  because  such  petit  assizes  are  to  be  taken  of  the 
counties  where  the  fees  are,  by  the  statute  of  king  Ed- 
ward called  such  actions,  assizes,  either  for  the  general 
cession  of  the  justices,  and  of  others,  or  from  the  proper 
names  of  such  actions. 


108  OF  ASSIZE  OF  NOVEL  [Ch.  I.,  Sc.  26. 

It  is  called  novel  to  put  a  difference  from  those  which 
are  ancient,  for  anciently  kings  used  to  go  over  the  shires 
to  enquire,  hear,  and  determine  offences,  and  to  redress 
the  wrongs  there,  and  that  which  was  not  brought  in 
such  Eyres  of  personal  trespasses  before  remained  to 
the  judgment  of  God  alone ;  and  afterwards  by  reason 
of  the  multitude  of  offences,  and  that  kings  could  not 
do  all  by  themselves,  therefore  they  sent  their  commis- 
saries who  now  are  called  justices  in  Eyre,  who  have 
not  power  to  decree  and  determine  a  personal  offence, 
but  for  a  thing  brought  and  not  determined  in  the  last 
Eyre ;  then  for  as  much  as  the  disseisin,  or  the  personal 
action  was  brought  before  the  Eyre,  the  action  or  dis- 
seisin was  ancient ;  but  if  the  disseisin  be  done  since  the 
last  Eyre,  then  it  is  a  novel  disseisin. 

Disseisin  is  a  personal  trespass,  of  a  wrongful  putting 
one  out  of  possession,  it  is  said  wrongful,  to  put  a  dif- 
ference from  rightful,  which  is  no  offence ;  as  if  I  take 
from  my  wife,  or  my  villain,  or  from  another  who  is 
my  ward,  that  which  is  my  own ;  or  if  you  take  from 
me  that  which  is  mine  I  take  it  from  you  again,  I  do  not 
offend ;  for  I  am  warranted  so  to  do  by  the  law  of  na- 
ture, seeing  this  usage  is  common  to  men,  beasts,  fishes, 
fowls,  and  other  earthly  creatures,  but  I  cannot  do  so 
afterward ;  for  if  I  take  from  you  forcibly  any  thing 
whereof  you  have  had  the  peaceable  possession,  I  do 
disseise  you,  and  I  do  wrong  to  the  king,  when  I  dis- 
seise him  of  his  right,  or  use  force  where  I  ought  to 


Ch.  II.,  Sc.  26.]     DISSEISIN,  AND  RE-DISSEISIN.  109 

use  judgment.  On  the  other  side,  that  which  is  taken 
from  me  by  the  rightful  judgment  of  any  judge,  ordi- 
nary, or  arbitrary,  is  not  taken  wrongfully  from  me. 

Wrong  is  here  taken  as  well  for  deforcement  or  dis- 
turbance, as  for  ejection. 

Deforcement,  as  if  another  entereth  into  another's 
tenement,  when  the  rightful  owner  is  at  the  market, 
or  elsewhere,  and  at  his  return  cannot  enter  therein, 
but  is  kept  out,  and  hindred  so  to  do. 

Disturbance  is,  as  if  one  disturb  me  wrongfully  to 
use  my  seisin  which  I  have  peaceably  had;  and  the  same 
may  be  done  three  ways. 

1  As  when  one  drivcth  away  a  distress,  so  that  I 
cannot  distrain  in  the  tenement  liable  to  my  distress, 
whereof  I  have  had  seisin  before. 

2  Another  is  where  one  doth  replevy  his  distress  by 
the  sheriff,  or  the  hundred  wrongfully. 

3  As  if  one  distrain  me  so  outragiously  that  I  can- 
not manure,  plow,  or  use  my  land  duly;  in  which  case 
it  maketli  one  an  outragious  distrainer  to  disseise,  or 
for  to  eject  the  tenent ;  as  if  any  one  eject  me  out  of  my 
tenement,  whereof  I  have  had  peaceable  possession  by 
discent  of  inheritance,  or  other  lawful  title  to  the  pos- 
session. 

x^ote  that  ail  right  is  in  two  kinds,  either  in  right  of 
possession,  or  in  right  of  property,  and  therefore  the 
right  of  property  is  not  so  determinable  by  this  assize, 


110  OF  ASSIZE  OF  NOVEL  [Ch.  II.,  Sc.  26. 

as  is  the  known  possession,  or  as  that  which  altogether 
favoureth  of  a  possessory  right. 

The  remedy  of  disseisins  hold  not  of  moveable  goods, 
nor  of  any  thing  which  falleth  not  into  inheritance, 
as  land,  tenement,  rent,  advowson  of  a  church,  and  a 
house  of  religion,  franchises,  and  the  appurtenances, 
and  such  other  rights,  whether  they  are  holden  perpet- 
ually in  fee,  or  for  term  of  life,  or  years,  according  to 
the  contract,  as  well  as  the  land  mortgaged  to  such  a 
one  and  his  heirs,  until  so  much  be  paid  to  such  a  tenant 
or  his  heirs. 

Ejection  of  a  term  of  years  falleth  into  the  assize, 
which  sometimes  cometh  by  lease,  or  bailment,  or  loan, 
and  sometimes  by  right  of  wardship  by  the  nonage  of 
some  heir,  and  to  the  recoverer  it  belongeth  to  hold  them 
according  to  the  contracts. 

Villanage  in  some  case  falleth  into  this  assize;  as  to 
free-tenants  who  are  ejected  or  disturbed  to  continue 
their  seisin  of  lawful  presentments,  and  whereof  a  bar- 
gain is  made  betwixt  any  donor  and  any  purchaser,  and 
although  that  the  purchaser  cannot  present  living  the 
clerk  of  the  donor  instituted  into  the  church;  the  title 
nevertheless  of  contracts  barreth  not  altogether  the 
donee,  so  that  afterwards  he  cannot  present  against  the 
form  of  the  contract,  and  if  he  do  the  donor  falleth  into 
this  assize,  and  the  bishop  who  gave  the  institution  to 
him  who  is  not  presented,  by  him  to  whom  the  right 
of  presentation  doth  belong  in  his  own  name. 


Ch.  II.,Sc.  28.]     DISSEISIN,  AND    RE-DISSEISIN.  m 

Into  this  assize  also  fail  donors  and  purchasers,  who 
make  vicious  contracts  of  lands  and  possessions,  as  also 
it  is  of  guardians,  and  of  farmers  who  lease  their  lands 
for  a  longer  time  than  their  term  endureth,  in  prejudice 
of  the  lord  of  the  fee,  or  of  hiui  to  whom  the  reversion 
belongeth,  as  it  is  of  those  lessors  who  have  fee-tail. 

On  the  other  side  fall  into  offence  those  the  king's 
officers,  and  others  who  disseise  a  man,  or  a  corporation 
of  their  franchises,  whereof  they  have  the  inheritance 
by  lawful  title,  if  not  through  the  default,  abuse  or 
negligence  of  those,  or  of  their  bailiffs,  to  whom  the 
franchises  belong. 

Into  this  offence  also  fall  all  attoraies,  who  yield 
up  the  inheritance,  or  freehold  of  their  clients  in  judg- 
ment, and  the  justices  also  who  yield  to  them,  and  the 
tenants  also,  for  it  behoveth  not  attornies  to  lose  their 
clients  rights,  but  it  behoveth  them  to  defend  them  till 
a  rightful  judgment  be  given. 

Into  this  offence  fall  all  those  wdio  commit  anv  waste, 
exile  or  destruction  in  lands,  as  that  which  is  not  justi- 
fiable by  law,  as  those  who  assign  over  lands  to  others, 
where  in  the  feoffments  to  themselves,  or  their  ances- 
tors there  is  mentioned  but  of  heirs  only,  and  that  may 
be  two  ways,  viz.  to  heirs  general,  or  to  special  heirs, 
named  as  in  fee-tail,  or  not  named,  as  in  frank-mar- 
riatjes. 

This   action   all   persons   may  bring,   men,    women, 


112   OF  ASSIZE  OF  NOVEL  DISSEISIN,  ETC.  [Ch.  II.,  Sc.  26. 

clerks  and  laymen,  infants  and  others  of  what  condition 
soever  they  be,  who  are  not  forbidden  by  the  law. 

It  is  forbidden  to  villains  to  bring  this  action  with- 
out their  lord,  for  as  much  as  they  are  in  the  custody  of 
their  lords,  in  the  same  manner  to  some  coverts,  and  to 
others  who  are  in  ward,  and  to  those  who  were  never 
tenants  in  their  own  names,  but  in  the  name  of  the 
lord. 

The  law  also  denieth  the  suit  to  those  who  have  with- 
drawn themselves  from  the  same  action  in  judgment,  or 
have  released  or  quit-claimed  their  right. 

And  note,  that  retraliere,  et  siih-trahere  is  not  all  one, 
retrahere  doth  acquit  a  man  from  those  things  which 
are  in  his  writ,  or  in  his  action ;  but  neither  the  one  nor 
the  other  can  utterly  bar  him,  if  he  do  not  openly  de- 
clare the  same ;  but  suhtraliere  withdraw  his  action, 
€very  plaintiff  may  do  either  by  himself  or  his  attorney, 
whether  he  be  present  in  court  or  absent,  and  altho' 
it  be  that  one  will  not  pursue  his  action,  yet  he  doth 
not  so  bar  himself,  nor  withdraw  himself,  but  that  he 
may  have  a  new  writ,  and  a  new  plaint,  if  he  do  not 
openly  in  judgment  say,  that  he  withdraweth  his  action ; 
these  remedies  hold  against  a  disseisor,  and  where  there 
are  many,  against  all  those  who  appear  in  the  force,  or 
in  the  aid. 


[Ch.  II.,  Sc.  2G.  OF  DISTRESSES  113 

Sect.  26. 

Of  distresses. 

Any  action  rightfully  grounded  upon  a  personal  tres- 
pass, aecrueth  to  ])eo])lp  wrongfully  distrained,  whicli 
is  called  a  distress;  and  because  that  none  can  cover  his 
robbery  or  his  larceny  by  distress,  it  is  first  to  be  known 
what  is  the  division  of  distresses. 

2  Who  may  distrain. 

3  When,  and  of  what  things  a  repleve  lieth. 

A  repleve  is  nothing  else  but  a  reasonable  distress. 

xV  reasonable  distress  is  to  the  value  of  the  thing  in 
demand  without  any  other  fault,  so  no  outragious  dis- 
tress is  termed  lawful. 

There  are  two  manner  of  distresses,  a  dead  distress, 
as  of  corn,  wine,  and  oth.er  such  chattels;  and  a  live  dis- 
tress, as  of  a  man,  a  beast,  and  of  such  like  things. 

Xo  man  can  distrain,  who  is  not  warranted  so  to  do 
by  law,  or  by  some  other  special  deed. 

1  By  the  law,  as  for  damage  feasance,  and  for  debts 
and  contracts  of  foreigners ;  for  foreigners  are  distrain- 
able  by  their  moveable  goods,  and  summonable  because 
they  are  not  free  tenants  in  the  places  where  they  are 
distrained;  and  for  (as  well)  a  debt  recovered  as  any 
other,  and  so  for  amercements  of  damages,  and  arrear- 
ages of  accompt,  or  other  thing. 


114  OF  DISTRESSES.  Ch.  II.,  So.  26.] 

2  By  deed,  as  if  you  grant  me  any  annuity,  and  do 
grant  me  to  distrain  in  the  lands  for  the  arreagages  of 
the  same,  or  other  service,  and  bind  your  possessions 
which  are  not  of  my  fee  in  whose  hands  soever  they 
come  to  a  distress. 

When  and  what  things  a  man  may  distrain. 

A  man  may  distrain  cattle  or  other  things  so  soon  as 
he  finds  them  damage  feasant,  and  not  the  day  after, 
and  after  the  time  of  payment,  and  not  before,  and  not 
every  day ;  and  in  the  night  a  man  may  not  distrain, 
but  only  in  the  day  time,  but  for  damage  feasant ;  for 
before  sun  rising,  or  after  sun-set,  no  man  may  distrain 
but  for  damage  feasant,  where  a  man  may  distrain  in 
places,  or  lands  within  the  see,  liable  to  distress  and  not 
elsewhere. 

Of  what  goods  a  distress  may  be. 

Of  all  goods  which  the  law  forbiddeth  not ;  the  law 
forbids  that  a  man  shall  not  distrain  within  the  view, 
where  he  may  have  a  sufficient  distress  in  an  open  coven- 
able  place. 

A  covenable  dead  distress  is  not  by  armour  or  vessels, 
by  robes  or  jewels,  by  writings  if  there  be  found  another 
distress  sufficient  in  itself. 

A  covenable  live  distress  is  not  to  be  of  sheep  which 


[Ch.  II.,  Sc.  26.  OF  DISTRESSES.  II5 

art  gelt,  muttons,  of  dogs,  birds,  fishes,  or  by  savage 
beasts  when  there  is  a  sufficient  distress  found  of  other 
cattle. 

A  distress  is  to  be  carried,  led,  or  driven  away  at  the 
will  of  the  distrainer,  and  in  case  any  distrainer  find  out 
anv  distress  but  within  some  inclosure,  in  such  case  he 
can  do  nothing,  but  to  shut  up  the  goods  inclosed,  and 
so  sequester  them  without  doing  any  other  violence,  and 
if  a  man  break  up  such  pound,  or  the  locks  of  it,  or  part 
of  it,  he  greatly  offendeth  against  the  peace,  and  doth 
trespass  to  the  king,  and  to  the  lord  of  the  fee,  and  to 
the  sheriffs,  and  hundredors,  in  breach  of  the  peace,  and 
to  the  party,  and  to  the  delaying  of  justice ;  and  there- 
fore hue  and  cry  is  to  be  levied  against  them,  as  against 
those  who  break  the  peace. 

A  dead  distress  found  in  a  covenable  place,  nor  a 
live  distress  is  not  to  be  led  or  driven  out  of  the  manor, 
or  out  of  the  hundred,  or  out  of  the  county,  nor  to  be 
put  in  any  pound  or  elsewhere,  where  he  to  whom  the 
goods  are  belonging  cannot  have  fight  of  them,  but  is 
to  be  put  into  such  a  place  where  the  distress,  and  he 
who  is  the  owner  may  be  least  endamaged. 

There  are  two  kinds  of  leading  of  distresses. 

1  One  when  a  man  leads  away  a  live  distress  against 
sufficient  gages  and  pledges. 

2  Another,  when  one  will  not  suffer  himself  to  be 


116  OF  DISTRESSES.  [Ch.  II.,  Sc.  26. 

distrained  lawfully,  and  the  one  and  the  other  are  per- 
sonal trespasses  against  the  peace. 

And  then  if  any  be  wrongfully  distrained,  ye  are  to 
distinguish  whether  it  be  by  those  who  have  power  to 
distrain  or  by  others. 

And  if  by  others,  then  lieth  an  appeal  of  robbery, 
wbereof  Hailif  gave  a  notable  judgment ;  and  if  by  those 
who  may  distrain,  then  they  ought  to  deliver  the  distress 
by  gages  and  pledges. 

And  if  the  distrainer,  and  the  plaintiff  of  the  distress 
lead  it  away,  then  the  conusance  thereof  doth  belong  to 
the  kino's  court,  and  so  there  is  remedv  by  a  writ  of 
replegiari  facias. 

Nevertheless,  for  the  releasing  of  such  distresses,  and 
for  the  hastening  of  the  right,  Randulf  de  Glanvile  or- 
dained, that  sheriffs  and  hundredors  should  take  sure- 
ties to  pursue  the  plaints,  and  should  deliver  the  dis- 
tresses, and  should  hear  and  determine  the  plaints  of 
tortious  distresses,  saving  to  the  king  the  suit,  as  to  the 
leading,  etc. 

Two  things  fall  in  these  plaints ;  plaints  of  taking, 
and  of  detaining;  whereof  there  are  four  degrees. 

1  Where  the  taking  is  justifiable  for  lawful,  and  the 
detaining  also,  as  for  a  debt  due,  or  debt  recovered. 

2  AMiere  both  are  wrongful  (as)  such  as  are  dis- 
avowable  both  in  the  taking  and  detaining.  S 

3  Where  the  taking  is  lawful,  as  in  damage  feasant,  V 


Ch.  II..  Sc.  26.J  OF  DISTRESSES.  II7 

and  the  detaining  tortious,  as  against  sufficient  gages 
and  pledges  tendered. 

4  Where  the  taking  is  tortious,  as  in  a  jwund,  and 
the  detaining  hiwful,  as  for  a  debt  confessed,  and  of  no 
more  have  the  ordinary  judges  conusance;  but  in  case 
where  the  plea  begins  by  writ,  conusance  ought  to  be 
made  of  the  taking;  of  the  detainino'  Heth  remedy  bv 
an  assize  of  novel  disseisin. 

The  taking  and  the  detaining  are  sometimes  by 
parties  known,  and  sometimes  by  parties  unknown,  but 
although  the  persons  are  known,  nevertheless  the  names 
of  the  detainers  oui>ht  to  be  known  ;  and  according  to 
that  the  avowant,  or  the  plaintiff  or  his  bailiff  if  he  be 
not  present,  ought  to  frame  his  declaration,  and  the 
plaint  jointly  against  the  persons,  and  against  the  de- 
tainers, or  severally  against  one  of  them,  and  if  against 
them  both,  then  thus;  A.  wrongfully  took,  and  caused 
to  be  taken,  by  such  a  one  known,  or  unknown,  etc., 
and  drove,  and  carried  away,  etc.,  and  wrongfully  doth 
detain  from  him,  etc.,  against  gages  and  pledges,  and  is 
yet  seised  thereof:  or  thus,  wrongfully  detained  from 
such  a  day  till  such  a  day,  that  he  delivered  the  same 
to  the  king's  bailiff  to  his  damage,  etc.,  for  these  words 
(and  yet  is  thereof  seised)  leaves  it  to  them,  that  they 
cannot  have  sight  of  the  distress,  and  to  those  who  detain 
the  distress  by  avowry  of  property. 


118  OF  CONTRACTS.  [Ch.  II.,  Sc.  27. 

Sect.  27. 
Of  contracts. 

A  CONTRACT  is  a  speecli  betwixt  parties,  that  a  tiling 
which  is  not  done  be  done,  of  which  there  are  many 
kinds,  whereof  some  are  perpetual,  as  those  of  matri- 
mony ;  others  are  temporary,  as  of  bailments,  and  leases ; 
and  one  kind  is  mixt,  as  of  exchanges,  which  sometimes 
are  for  a  time,  and  sometimes  for  ever ;  and  one  special 
kind  is  an  obligation. 

And  because  the  law  doth  not  intermeddle  with  every 
contract,  we  are  to  see  who  may  contract,  and  of  what 
things  contracts  may  be;  every  one  may  make  contracts 
with  all  persons  who  is  not  forbidden  by  law. 

The  law  forbiddeth  that  none  contract  with  the 
enemies  of  the  king  of  heaven,  nor  wuth  the  enemies 
of  their  earthly  king;  nor  with  any  mortal  offenders, 
nor  with  those  who  are  not  of  the  Christian  faith,  nor 
with  outlaws,  nor  waives,  nor  with  those  who  are  known 
felons,  nor  excommunicated,  nor  with  any  who  are  in 
ward,  if  not  to  the  profit  of  those  who  are  in  ward; 
nor  with  deaf,  nor  ideots,  nor  madmen,  nor  appellees, 
nor  persons  indicted  of  crime. 

Of  ivhat  thing  a  contract  may  he  made. 

Of  all  things  not  forbidden  by  law.      The  law  for- 


I 


Ch.  II.,  So.  27.]  OF  CONTRACTS.  119 

biddeth  that  a  man  do  not  make  contract  of  the  right 
of  another,  although  he  offend  not ;  the  law  forbids  con- 
tracts of  usury,  disseisin,  hurting  of  the  body,  disin- 
heriting, and  of  other  offence  or  vices. 

Contracts  are  forbidden  which  are  to  the  damage  of 
the  party  gaining,  by  vice,  by  forbidding  mixture  of 
offence. 

Contracts  are  vicious  ;  1  sometimes  by  intermixture 
of  offence ;  2  sometimes  bv  intermixture  of  ill-belief ; 
3  sometimes  when  they  are  made  against  that  which  is 
absolutely  forbidden ;  4  and  sometimes  by  false  sup- 
position. 

In  the  first  case,  as  if  I  contract  with  you,  that  if  I 
do  not-such  a  thing,  or  such  a  thing,  that  it  shall  be  law- 
ful for  you  or  another  to  kill  me,  or  to  wound  me,  or 
imprison  me ;  or  of  usury,  that  you  shall  not  demand  of 
C  for  100  /.  5  I.  or  other  thing,  etc. 

In  the  second,  as  if  I  give,  or  deliver,  or  leave  a  thing 
with  you  in  hope  that  you  will  re-deliver  the  same  to 
me  again,  and  you  detain  this  thing  from  me ;  or  if  I 
devise  in  my  will,  that  you  shall  sell  some  of  my  tene- 
ments to  pay  my  debts,  or  to  do  other  things  with  the 
money,  and  you  being  my  executor,  keep  this  money  for 
ever  to  your  own  use,  without  doing  of  it ;  or  if  I  sell, 
change,  deliver  a  lease  unto  you  to  have  so  much  of 
you  at  such  a  time,  and  you  keep  from  me  that  which 
you  promised. 

In  the  third  case,   as  if  I  make  any  contract  with 


120  OF  CONTRACTS.  [Ch.  II.,  Sc.  27. 

those  with  whom  it  is  not  lawful,  nevertheless  the  con- 
tract of  matrimony  is  not  forbidden  betwixt  infants^ 
although  it  be  used  to  be,  but  in  case  of  disparagements ; 
for  disparagement  is  an  offence  which  is  greatly  for- 
bidden. 

The  fourth  case,  as  of  charters,  or  other  kinds  of 
mnniments ;  as  it  is  of  charters,  and  feoffments  made 
in  the  seisin  of  the  donors,  and  of  charters  of  quit- 
claim made  out  of  the  seisin  of  those  who  have  them; 
for  no  charter,  no  rent,  nor  gift  remaineth  good  for 
ever,  if  the  donor  be  not  seised  at  the  time  of  the  con- 
tract of  two  rights,  of  the  right  of  possession,  and  the 
right  of  property;  and  as  a  charter  supposing  a  gift  to 
be  made  without  difference  is  void,  so  is  the  quit-claim 
of  a  thing  whereof  the  maker  of  the  deed  is  not  in  pos- 
session of  the  thing  quit-claimed. 

And  as  the  charters  in  the  cases  aforesaid  are  noth- 
ing worth,  so  also  are  the  warranties,  and  whatsoever 
belongeth  to  such  estates,  which  are  without  force  by 
virtue  of  such  false  supposition. 

On  the  other  side,  suppose  that  a  single  deed  be  false,^ 
which  testifieth  the  gift  to  be  returned  to  the  donor,  or 
to  his  heirs,  or  in  any  other  manner  of  condition ;  for  a 
gift  is  always  simple,  and  not  of  the  same  affection  of 
the  giver  as  to  the  right  of  the  gift,  that  the  thing  given 
should  remain  to  the  purchaser  without  hope  of  rever- 
sion. 

A  single  deed  is  a  muniment  without  indenture,  and 


Ch.  Il.,Sc.  27.]  OF  CONTRACTS.  121 

therefore  the  law  reqiiireth,  that  escripts,  testimonials 
of  contracts  conditional,  supposing  a  reversion  be  in- 
dented,  and  ehirographed. 

Contracts  are  supposed  false  in  taking  homage  in 
deceit  of  the  law;  as  if  I  take  your  homage  for  other 
service  than  for  the  service  issuing  out  of  the  tenure  de 
Hauhert. 

The  law  forbiddeth  also,  that  none  let  not  take  any 
land,  nor  fee,  nor  possession,  nor  term  of  years  to  come 
above  the  term  of  forty  years,  nor  that  any  contracts 
be  made  in  fee  farm  for  ever,  nor  for  years,  rendering 
more  rent  by  the  year  than  the  fourth  part  of  the  value; 
nor  that  any  be  endowed  of  advowsons,  nor  any  aliena- 
tion of  advowsons  be  made  out  of  the  blood,  if  not  in 
perpetuity,  or  fee-simple;  nor  that  an  advowson  be 
partable  amongst  parceners,  but  that  it  remain  entirely 
to  the  next  heir  of  the  ancestor,  or  that  there  be  anv  lease 
for  years  left,  or  fee-tail  thereof,  for  the  advowson  of  a 
church  is  so  uincli  in  the  spirituality  that  there  can  be 
no  alienation  thereof,  but  in  fee-simple. 

In  rights  of  contracts  of  bailment,  and  administra- 
tion of  other  goods  and  monies,  it  is  lawful  for  every 
one  wisely  to  dispose  of  his  goods  to  whom  he  will ;  and 
therefore  it  is  advised  that  every  one  have  bailiflF«j,  or 
officers  who  he  conceiveth  do  well  understand  the  manor, 
and  if  he  be  endamaged  by  any  servant,  or  other  hurt, 
that  it  be  accounted  his  oavu  folly,  seeing  he  took  not 
sufficient  surety  of  their  faithfulness  and  discretion; 


122  OF  VILLENAGE  AND  NIEFTY.     [Ch,  II.,  Sc.  28. 

and  e  contra,  for  against  him  who  hath  nothing  the  law 
giveth  no  recovery,  nor  other  remedy  but  revenge  ;  never- 
theless if  there  be  any  such  bailiffs  who  will  not  render 
a  true  account  to  his  lord,  he  is  chargeable  thereunto  by 
a  writ  of  account,  which  is  a  mixt  action  if  he  have 
wherewith  to  justify  himself;  and  if  he  be  not  distrain- 
able,  nor  a  freeholder,  and  deceiveth  his  lord,  and  will 
not  render  an  account  for  such  disobedience,  he  shall 
have  the  said  action  personal  mixt. 

And  according  to  the  change  of  the  natures  of  the 
actions,  the  forms  of  the  remedial  writs  are  changed. 

And  although  that  such  for  their  contempts  are  ban- 
ished for  a  time,  or  for  ever,  yet  is  no  man  to  be  out- 
lawed, or  imprisoned  for  the  same ;  but  if  any  be  in 
arrearages  to  his  lord,  ye  are  to  distinguish  thereof  if 
he  have  any  thing,  whereof  satisfaction  may  be  made  by 
judgment,  to  the  example  of  a  debt  recovered,  or  other- 
wise. 


Sect.  28. 
Of  villanage  and  niefty. 

An  action  of  villanage  and  niefty  is  a  mixt  action, 
grounded  upon  a  personal  trespass  done  to  another, 
when  a  man  prosecutes  a  freeman  to  enslave  his  blood. 

This  action  is  a  mixt  action  in  favour  of  liberty,  for 


Ch.  II.,  Sc.  28.J    OF  VILLENAGE  AND  NIEFTY.  123 

very  seldom  will  any  one  depart  from  his  lord's  manor, 
if  lie  claim  not  himself  to  be  a  freeman. 

This  action  hath  introduction,  by  summons,  and  at- 
tachments of  the  lands. 

A  waive  is  nothing  but  a  villainess,  and  notwithstand- 
ing that  according  to  the  law  of  nature  all  creatures 
ought  to  be  free,  nevertheless  by  constitution,  and  by  the 
deeds  of  men,  (are)  they  and  other  creatures  enslaved, 
as  it  is  of  beasts  in  parks,  fishes  in  ponds,  and  birds  in 
cages. 

The  villanage  of  man  is  a  subjection  of  such  great 
antiquity,  that  by  the  memory  of  man  no  free  stock 
can  be  found  thereof;  which  slavery  according  to  some 
is  the  curse  which  Noali  gave  to  Caanan  the  son  of 
Cham  his  son,  and  to  his  issue,  and  according  to  others 
of  the  Philistines,  who  became  slaves  at  the  battle  which 
was  betwixt  David  and  the  children  of  Israel  of  the  one 
party,  and  Goliah  the  Philistine  on  the  other  part. 

And  as  other  creatures  are  kept  in  inclosures,  so  are 
villains  kept  to  guard  the  possessions  of  their  lords, 
and  from  thence  are  said  regardants;  and  so  men  are 
villains  bv  the  law  of  God,  bv  the  law  of  man,  and  bv 
the  canon  law. 

From  Shem  and  Japhet  come  the  gentile  Christians, 
and  from  Cham,  the  villains  which  the  Christians  may 
give  away,  Or  sell  as  they  do  other  chattels,  but  not  de- 
vise by  will,  because  they  are  astriers,  who  are  annexed 


124:  OF  VILLENAGE  AND  NIEFTY.     [Ch.  II.,  Sc.  28. 

to  the   frank-tenement,   and  of  them  there   are  many 
others. 

Those  are  villains  who  are  begot  of  villains  and  neifs 
in  servitude,  whether  born  in  matrimony  or  ont  of 
matrimony ;  those  also  are  villains  who  are  begotten  of 
villains,  and  born  of  free  women  in  matrimony,  and 
those  are  villains  who  are  begotten  of  a  freeman  and  a 
nief,  and  born  out  of  matrimony. 

The  other  manner  of  villains  are  those  who  are 
adjudged  villains  by  a  writ  of  nativo  hahendo,  and  their 
issue  after  them. 

Villains  become  free  many  ways;  some  by  baptism,. 
as  those  Saracens  who  are  taken  by  Christians,  or 
bought  and  brought  to  Christianity  by  grace. 

Some  became  free  by  the  Pope,  as  it  is  of  those  vil- 
lains who  by  bishops  are  ordained  into  orders  of  deacon, 
and  above ;  but  notwithstanding  the  same  a  man  shall 
not  lose  his  right  thereby  who  will  sue  for  them. 

On  the  other  part  villains  become  freemen  if  their 
lords  grant,  or  give  unto  them  any  free  estate  of  inheri- 
tance to  descend  to  their  heirs ;  or  if  the  lord  take  their 
homage  for  their  land,  or  if  the  lord  eject  them  out  of 
their  fees  and  give  them  sustenance ;  or  if  he  put  them  in 
a  common  prison  if  it  be  not  for  crime. 

A  woman  after  she  is  put  in  possession  by  her  lord,. 
is  never  again  to  be  challenged  as  a  nief,  notwithstand- 
ing she  be  sold. 

And  if  the  lord  suffer  his  villain  to  answer  in  judg- 


CH.  II.,  Sc.  28.]     OF  VILLENAGE  AND  NIEFTY.  125 

meiit  without  him  in  a  personal  action,  or  to  be  a  juror 
amongst  freemen,  as  a  freeman  knowingly,  and  without 
the  lord's  claim;  the  villain  hath  this  plea  to  the  vil- 
lanage  if  he  return  not  of  his  own  accord. 

Also  a  villain  becomes  free  through  the  lord's  default 
in  a  writ  of  iiatiro  Jiabendo,  as  by  his  non-suit  in  the 
writ. 

Also  by  proof  of  a  free  stock,  or  to  have  been  born 
•of  free  parents. 

Also  by  the  lord's  grant  in  court,  and  also  by  pre- 
scription ;  also  by  default  of  proof,  and  also  by  the  lord's 
negligence,  as  by  the  remaining  of  the  villain  within 
a  city,  or  upon  the  king's  demesnes  for  a  whole  year; 
or  if  wittingly  he  suffer  his  villain  to  be  a  suitor  in 
another  court,  or  to  be  sworn  in  assize,  or  elsewhere 
amongst  freemen;  if  a  villain  depart  from  his  lord 
claiming  free-estate,  so  that  he  cannot  seise  him  within 
the  manor  within  the  year,  or  out  of  his  fee,  nor  after 
his  writ  of  )tafivo  hahend,  brought,  it  belongeth  to  the 
lord  that  he  bring  again  that  action  which  is  vice-coun- 
■sicl,  and  pleada])le  in  the  county,  by  summons  and  dis- 
tresses of  his  lands;  for  the  law  requireth  that  he  do 
right  and  use  not  force. 

The  parties  being  brought  to  judgment  in  the  county 
•court,  and  the  action  being  declared  in,  the  defendant 
l)y  way  of  exception  may  plead  that  he  is  frank,  and 
because  that  a  free  estate  is  of  a  higher  nature  than 
Tillanage ;  therefore  because  the  sheriff  hath  not  power 


120  OF  VILLENAGE  AND  NIEFTY.     [Ch.  II..  Sc.  28. 

to  try  so  high  a  plea  by  the  writ  of  nativo  habendo, 
those  writs  and  such  pleas  are  suspendable  till  the  com- 
ing of  the  justices  in  Eyre  into  those  parts;  but  if  the 
king  command  not  to  the  contrary,  those  pleas  are  not 
adjournable  but  from  one  county  court  to  another. 

J^ote  that  all  villains  are  not  slaves,  for  slaves  are 
said  regardant,  as  before ;  they  can  purchase  nothing 
but  to  the  lord's  use,  they  know  not  in  the  evening  what 
service  they  shall  do  in  the  morning,  nor  any  certainty 
of  their  services ;  the  lords  may  fetter,  imprison,  beat 
or  chastise  those  at  their  pleasures,  saving  to  them  their 
lives  and  members,  these  may  not  fly,  or  run  from  their 
lords  so  long  as  they  find  them  wherewith  to  live ;  nor 
is  it  lawful  for  others  to  receive  them  without  their  lords 
consent ;  those  can  have  no  manner  of  action  against 
any  man  without  their  lords,  but  in  case  of  felony ;  and 
if  those  slaves  hold  lands  of  their  lords,  it  is  intended 
that  they  hold  them  from  day  to  day  at  their  lords  will, 
and  not  by  any  certain  services. 

*  Villains  are  tillers  of  lands,  dwelling  in  upland 
villages,  for  of  vUl  cometh  villain,  of  borough  burgess, 
and  of  city  citizen ;  and  of  villains  mention  is  made  in 
the  great  charter  of  liberties,  where  it  is  said,  that  a 
villain  be  not  so  grievously  amerced  that  his  tillage  be 
not  saved  to  him ;  but  the  statute  maketh  no  mention 
of  slaves,  because  they  have  nothing  of  their  own  to  lose. 

And  of  villains  are  these  tillages  called  villanages. 
*  Note,  by  villains  in  this  place  is  meant  copyholders. 


Ch.  II.,  Sc.  28.]     OF  VILLENAGE  AND  NIEFTY.  127 

And  note,  that  those  who  are  free,  and  quit  of  all 
servitude,  become  servile  bj  contracts  made  betwixt  the 
lords  and  the  tenants. 

And  there  are  many  manners  of  contracts  of  fees,  as 
of  gift,  of  rent,  of  exchange,  and  lease,  which  all  may 
make  for  a  time,  or  for  ever,  and  quitment  without  ob- 
ligation, and  charge  of  service,  and  with  charge. 

And  these  contracts  (as  all  other)  are  made  by  writ- 
ings, charters,  and  muniments,  by  solemn  witnesses,  ac- 
cording to  the  example  of  contracts  of  marriages,  which 
ought  to  be  a  pattern  to  all  other  contracts;  according 
to  which  example  were  the  first  contracts  made  by  the 
first  conquerors,  when  the  earls  were  enfeoffed  of  the 
earldoms,  barons  of  the  baronies,  knights  of  knights 
fees,  Serjeants  of  serjeanties,  villains  of  villanages,  bur- 
gesses and  merchants  of  boroughs,  whereof  some  re- 
ceived their  lands  without  obligation  or  service,  or  in 
frankalmoign ;  some  to  hold  by  homage  and  by  service, 
for  defence  of  the  realm,  and  some  by  villain  customs, 
as  to  plough  the  lords  lands,  to  reap,  cut  and  carry,  his 
corn,  or  hay,  or  such  manner  of  service,  without  giving 
of  any  wages,  whereof  many  fines  were  levied  of  such 
services,  which  make  mention  of  the  doinjj  of  these 
base  services,  as  well  as  of  other  more  gentile  services; 
and  although  so  it  be,  that  the  people  have  no  charters, 
deeds,  nor  muniments  of  their  lands;  nevertheless  if 
they  were  ejected,  or  put  out  of  their  possessions  wrong- 
fully,  by   bringing  an   assize  of  novel  disseisin,   they 


128  OF  SQMMONS.  [Ch.  II.,  Sc.  29. 

might  be  restored  to  their  estates  as  before,  because  thev 
could  aver,  that  they  knew  the  certainty  of  their  ser- 
vices, and  works  by  the  year,  as  those  whose  ancestors 
before  them  were  astraies  for  a  long  time,  in  case  dis- 
seisors were  not  their  lords. 

And  thereupon  St.  Edward  in  his  time,  caused  en- 
quiry to  be  made  of  all  such  who  held,  and  did  to  him 
such  services  as  ploughing  his  lands,  etc.,  besides  their 
lawful  customs. 

And  afterwards  the  people  less  fearing  to  offend  than 
they  ought,  many  of  these  villains  by  wrongful  dis- 
tresses were  forced  to  do  their  lord  the  service  of  rechat 
of  blood,  and  many  other  voluntary  customs,  to  bring 
them  in  servitude  under  their  power  for  which  their 
remedy  was  a  writ  of  ne  in  juste  vexes. 


Sect.  29. 
Of  summons. 

This  chapter  maketli  mention  of  special  summons, 
to  make  a  difference  from  general  summons,  where  a;I 
freeholders  and  others  ought  to  come  according  to  the 
nature  of  the  cry  whereof,  and  every  cue  may  summon 
by  a  common  cry;  but  of  this  summons  this  chapter 
maketh  not  mention. 

A  special  summons  is  a  friendly  admonition  of  an 


I 


Ch.  II.,  So.  29. J  OF  SUMMONS.  129 

amendment  of  an  offence,  or  wrong ;  and  becanse  none 
is  tied  to  answer  to  any  action  real  or  mixt  before  a 
.summons,  therefore  it  is  to  fee ; 

1  Who  have  authority  to  summon. 

2  Who  are  summonable. 

3  In  what  place  he  is  summonable. 

4  How  far  one  is  summonable. 

5  At  whose  charges. 

6  How  often. 

7  Who  may  be  summoners. 

8  What  is  a  reasonable  summons. 

1  All  who  have  jurisdiction,  have  authority  to  sum- 
mon. 

2  All  those  who  are  not  forbidden  by  law  are  sum- 
monable, none  is  to  be  summoned  for  a  personal  offence, 
nor  any  one  who  is  not  a  freeholder. 

3  A  man  is  not  summonable  in  all  places,  for  no 
man  is  summonable,  nor  bounden  to  receive  summons 
out  of  the  fee  of  the  party  who  causeth  the  summons, 
nor  elsewhere  but  in  the  manor  appendant  to  such  a 
court  where  he  ought  to  answer,  nor  in  all  places  of  the 
manor,  but  only  at  the  tenement  in  demand. 

4  How  far  one  is  summonable ;  not  out  of  the  fee 
of  the  court  where  one  is  to  answer. 

5  At  whose  charges  ?  At  the  charges  of  those  who 
are  the  first  causers  of  the  summons,  except  in  juries 
and  en  quests  taken  ex  officio;  for  no  freeman  is  compela- 


130  OF  ESSOINS.  [CH.  II.,  So.  30. 

ble  to  travel,  and  appear  in  judgments  at  his  own 
charges,  notwithstanding  that  the  law  reqiiireth  that 
every  tenant  obey  the  summons  of  his  lord. 

6  How  often  one  is  summonable ;  bnt  once  in  one 
canse,  nevertheless  re-summoned  holdeth  place  in  some 
case. 

7  Who  may  and  ought  to  be  summoners ;  no  man  is 
compellable  to  be  a  summoner  if  he  will  not  agree  to 
it ;  nevertheless  all  those  may  be  summoners  who  will, 
that  are  not  forbidden  by  the  law.  Women,  nor  vil- 
lains, nor  infants,  nor  any  infamous  person,  nor  any 
one  who  is  not  a  freeholder  cannot  be  a  summoner. 

8  It  is  a  reasonable  summons,  when  it  is  testified 
by  two  loyal  free  witnesses,  neighbours  to  the  person,  or 
to  the  house,  or  tenement  contained  in  the  writ,  with 
warning  given  of  the  day,  place,  party,  judge  of  the 
cause,  and  a  reasonable  respite,  at  least  of  fifteen  days 
to  provide  his  answer,  and  to  appear  in  judgment.  In 
juries  nevertheless,  nor  enquests  there  need  not  be  so 
full  time  or  respite  given. 


Sect.  30. 

Of  essoins. 

Essoin  is  an  excuse  of  a  default  by  any  hindrance 
in  coming  to  the  court,  and  lieth  as  well  for  the  plaintiff 
as  for  the  defendant. 


Ch.  II.,  Sc.  30.]  OF  ESSOINS.  131 

The  linv  of  every  essoin  is,  that  the  cause  of  the 
hindrance  he  enrolled  with  th(>  name  of  the  essoiner, 
so  that  if  the  adverse  party,  or  his  attorney,  or  essoiner, 
will  traverse  the  cause,  he  is  to  be  received  so  to  do, 
that  if  it  he  found  false,  then  that  the  essoin  he  turned 
to  a  default. 

All  those  may  be  essoined  who  are  not  forbidden  by 
law;  no  defendant  in  jjersonal  actions,  nor  any  after 
default  can  be  essoined,  nor  any  present  in  court ;  nor 
doth  essoin  lye  in  a  sci?-e  facias,  nor  in  a  venire  facias, 
nor  in  a  recordafl  facias  loqaclani,  nor  in  admeasure- 
ment of  pasture,  nor  after  the  parties  have  joined  issue 
in  judgment  though  the  jury  appear  not;  nor  in  case 
where  the  plaintiff  hath  not  found  surety  to  pursue  his 
action,  nor  where  one  hath  attorney  in  court,  if  both 
be  not  essoined,  nor  where  the  summons  is  not  testified ; 
nor  after  an  essoin  not  warranted,  nor  to  him  who  was 
not  named  in  the  writ,  or  in  the  plaint,  except  in  war- 
ranties ;  nor  any  one  who  is  re-summoned  in  mortd'an- 
cestor  and  darrein  presentment,  nor  when  the  day  is  to 
come,  nor  where  the  essoiner  cometh  too  late,  nor  any 
one  whose  adversary  is  dead,  or  any  of  his  parceners, 
nor  he  who  is  adjourned  from  day  to  day,  nor  the  king's 
officer  as  officer,  nor  he  to  whom  it  is  commanded  that 
he  appear  if  he  please. 

No  essoin  is  justifiable  if  it  be  not  orderly  cast,  nor 
is  it  allowed  to  infants  within  age,  nor  to  any  who  is 


232  OF  ESSOINS.  [Ch.  II.,  Sc.  30. 

in  custody,  nor  to  many  having  one  right,  if  the  cause 
be  not  divers. 

All  may  be  essoiners  whom  the  law  forbiddeth  not ; 
it  is  forbidden  to  women,  to  infants,  to  villains  and  to 
all  who  are  in  custody ;  to  madmen,  to  ideots,  to  ex- 
communicated persons,  to  the  judges,  and  to  the  parties 
in  the  cause,  to  l)e  essoiners  at  other  times  not  war- 
ranted, or  attainted  of  false  delays;  to  criminal  per- 
sons, and  to  those  who  are  not  of  the  Christian  faith, 
or  in  the  king's  allegiance,  it  is  forbidden  that  they  be 
essoiners. 

There  arc  chiefly  two  kinds  of  essoins;  the  one  of 
the  king's  service,  the  other  of  hindrance. 

The  first  is  dividable,  either  into  the  service  of  the 
king  of  heaven,  or  of  the  king  on  earth  ;  of  the  king 
of  heaven  in  three  manners. 

1    Either  for  the  general  passage  of  all  to  the  land  of, 

etc. and  this  essoin  is 

not  otherwise  adjournable,  but  that  the  parties  go  with- 
out day,  and  are  to  appear  again  by  re-summons  of  the 
plaintiffs,  at  the  return  of  the  defendant.  This  essoin 
is  not  allowable  to  plaintiffs,  nor  to  the  defendant  rea- 
sonably summoned  before  his  going  from  his  house  in 
a  personal  action,  nor  in  other,  bnt  in  a  plea  which 
toucheth  inheritance ;  nor  but  in  a  writ  of  right  patent, 
but  not  of  dower,  nor  of  burgage. 

The  other  essoin  of  the  service  of  the  king  of  heaven, 
is  of  a  common   pilgrimage  beyond  sea,   towards  the 


Cii.  II.,  Sc.  30.]  OF  ESSOINS.  ;[33 

holy  land,  and  this  lasts  for  a  year,  this  holds  not  but 
according  as  the  other. 

The  third,  of  a  pilgrimage  beyond  sea,  as  to  Rome, 
or^  to  Saint  James  de  compostella,  and  take  place  for 
half  a  year,  and  these  essoins  are  to  appear  the  next 
courts  following  the  terms  adjourned. 

After  re-summons  holdeth  place  the  common  essoin 
de  mal  venire,  and  also  after  the  term  of  adjournment; 
but  this  common  essoin  never  holds  place  before  the 
essoins  before  said. 

The  essoin  of  the  king  on  earth's  service  is  in  two 
manners. 

1  The  one  is  of  those  who  serve  as  soldiers,  as  mes- 
sengers, or  as  ministers;  and  this  essoin  is  not  respited 
but  from  court  to  court,  or  the  common  day,  to  the 
example  of  a  common  essoin,  if  it  be  not  warranted  at 
the  next  court  by  the  king's  writ,  it  is  to  be  turned  to  a 
default. 

2  The  other  is  of  those  who  serve  the  kina-  bv  tenure 
of  their  land  foj-  the  defence  of  the  realm,  and  he  hath 
no  day ;  but  the  plaintiff  is  without  day,  and  the  plea  i& 
to  l)e  recontinued  in  the  same  estate  when  his  adversary 
shall  be  returned. 

These  latter  essoins  are  allowable  in  pleas,  summon- 
able  to  plaintiffs  and  defendants,  except  in  dower  unde 
lulnl  liabef,  yuare  Impedit,  darrein  presentment;  nor 
to  women,  nor  to  infants,  nor  to  ideots,  nor  to  deaf,  nor 
to  dumb,   nor  madmen,  nor  to  any  in  custody,  nor  to 


134  OF  ESSOINS.  [Ch.  II.,  Sc.  30. 

any  who  is  not  free  of  himself,  nor  to  any  attorney,  as 
attorney,  nor  where  the  essoiner  acknowledgeth  the 
cause  in  judgment  to  be  false,  nor  after  any  cape,  nor 
after  distress  in  the  land. 

After  the  essoins  of  the  king's  service  lieth  an  essoin 
of  malo  veniendi,  but  not  e  contra. 

The  essoin  of  disturbance  or  hindrance  is  dividable, 
either  of  sickness,  or  of  some  other  hindrance,  as  of  those 
who  coming  towards  the  court  are  taken  by  the  king's 
enemies,  and  so  hindred ;  or  by  waters,  bridges,  or  ene- 
mies discovered,  or  by  tempests,  or  other  reasonable  dis- 
turbance, so  that  they  have  not  power  to  appear  at  the 
day. 

The  essoin  of  hindrance  and  sickness  is  dividable, 
either  of  languishing  which  is  called  de  malo  lecti,  and 
that  holdeth  place  for  a  year;  or  of  sickness  in  the  jour- 
ney, and  that  holds  not  but  to  the  example  of  a  common 
essoin ;  in  these  essoins  of  hinderance  are  essoins  de 
malo  veniendi. 

This  essoin  lieth  after  every  summons,  and  general 
re-summons  up)n  pleas,  except  to  jurors,  and  those 
who  are  summoned  for  the  commonwealth. 

But  of  adjournments  it  is  to  distinguish ;  for  in  the 
Eyre  of  justices,  the  adjournment  is  for  three  days,  or 
four  at  the  most,  or  less  according  as  the  places  are 
near,  or  contain,  and  to  this  essoin  is  respited  fifteen 
days  at  the  least. 

The  essoin  of  sickness  in  passage  lieth  before  the  es- 
soin de  malo  lecti,  and  also  after  the  year  of  the  Ian- 


Ch.  II.,  Sc.  30.]  OF  ESSOINS.  135 

giiisliiiig,  niul  it  lictli  I)ef()re  appearance,  and  after  ap- 
pearance, except  in  four  assizes;  and  where  it  lieth  in 
actions  it  lioldeth   in   warranties. 

This  common  essoin  is  not  allowable  in  the  cases 
aforesaid,  but  once  aftc^r  the  parties  have  joined  issue, 
nor  after  the  })arties  have  agreed  to  appear  without 
essoin,  uov  where  a  bishop  is  commanded  that  ho  have 
or  cause  such  a  person  to  appear,  nor  there  where  many 
claim  by  one  right,  or  are  tenants  of  the  same  right,  nor 
to  a  man  and  his  wife,  nor  to  all  the  parceners;  but  if 
a  man  dicth  without  heir  after  the  writ  purchased  and 
brought,  the  writ  is  thereby  abatable,  because  at  the 
day  of  the  date  the  plaintiff  had  no  action  against  the 
other  parceners  which  are  alive,  as  to  that  of  the  party. 

This  common  essoin  lieth  as  well  for  infants  whore 
they  are  impleaded  of  their  lands,  as  for  men  of  full 
age. 

And  as  the  same  is  allowed  to  the  tenant,  so  is  it  war- 
ranted where  no  sickness  is  adjudged;  this  essoin  is 
allowable  from  day  to  day,  according  to  the  common  ad- 
journments in  wa-its  of  right,  till  the  sickness  be  judged, 
if  the  tenant  rise  not  before  from  his  sickness;  never- 
theless none  can  do  it  in  such  a  case  if  not  with  the 
plaintiff's  leave,  or  by  the  command  of  the  king,  if  the 
plaintiff  will  not  give  him  leave. 

This  essoin  holdeth  in  the  writ  of  droit  patent  sent 
to  the  lord  of  the  manor,  and  in  a  writ  of  droit  close 
of  lands  holden  of  the  king  in  rapite,  and  in  the  wi'it 
of  customs  and  services,  after  that  the  deforceor  hath 


136  OF  ESSOINS.  [Ch.  II.,  Sc.  30, 

pleaded,  and  said  that  the  battle  or  the  grand  assize 
may  be  joined. 

The  essoin  de  malo  lecti  is  in  court  for  two  years 
when  the  sickness  turns  to  weakness ;  this  essoin  lieth 
not  for  the  plaintifP;  and  after  the  sickness  adjudged, 
it  is  adjournable  by  a  year  of  respite  to  the  court  of 
London. 

Weakness  lieth  not  in  any  writ  of  right  after  appear- 
ance, but  where  battle  may  be  joined,  or  the  grand 
assize. 

This  essoin  de  malo  lecti  was  never  allowable  to  any 
attorney,  nor  to  any  but  those  who  had  a  warrant  be- 
fore the  common  essoin  cast  by  the  tenant,  nor  to  any 
after  the  weakness  adjudged,  nor  without  rising;  nor 
in  justicies,  nor  in  the  writs  de  quo  jure,  nor  de  ration- 
ahilibus  divisis,  nor  quo  warranto,  nor  customs  and 
services  before  that  the  court  be  certified  that  battle 
might  be  joined,  or  the  grand  assize. 

This  essoin  of  de  malo  veniendi  is  called  de  malo 
villce,  and  this  lieth  in  case  where  one  appeareth  the 
first  day  in  judgment,  and  is  suddenly  taken  with  sick- 
ness in  the  town,  that  he  cannot  the  next  day  appear  in 
court. 

This  essoin  mav  be  cast  the  second  day  by  one,  the 
third  day  by  another,  and  the  fourth  day  by  a  third ; 
in  which  case  the  judge  ought  to  receive  the  atturnies 
of  those  who  are  sick,  but  this  essoin  lieth  not  but  there 
where  the  essoin  de  malo  lecti  lieth. 


i 


i 


ch.ii.,sc.3i.j  of  attornies.  137 

Sect.  31. 
Of  attornies. 

Before  a  plea  put  into  court  by  essoins,  by  attach- 
ment, or  by  appearance  of  the  parties,  none  is  to  be  re- 
ceived l)v  attorney,  no  more  than  a  plea  is  removeable 
out  of  court  into  a  higher  court,  where  the  plaint  or 
the  writ  is  not  brought ;  nor  any  is  to  be  received  by  at- 
torney in  a  plea  wliieh  was,  nor  in  a  plea  which  shall 
be,  but  only  in  a  plea  which  is  pendant  in  the  county 
court,  or  elsewhere ;  or  is  brought  by  the  king's  Avrit, 
and  this  ])loa  be  afterwards  removed  into  a  higher 
court ;  by  this  removing  the  attorney  is  not  removed, 
for  no  attorney  is  removable  unless  he  whose  attorney 
he  is,  come  into  the  court  in  proper  person  and  remove 
him,  if  not  in  case  where  one  hath  general  attorney,  for 
general  attornies  may  appoint  special,  and  remove  them  ; 
nor  any  can  receive  attornies  after  the  plea  brought  but 
the  king,  or  other  warranted  by  a  special  writ,  if  not  in 
the  presence  of  the  parties. 

All  may  be  attornies  which  the  law  will  permit ; 
women  may  not  be  attornies,  nor  infants,  nor  villains, 
nor  any  who  are  in  custody,  or  any  other  who  is  not 
free  of  himself,  nor  any  who  is  criminous,  nor  any  who 
are  not  sworn  to  the  king,  nor  any  in  any  personal 
action,  nor  in  an  account,  nor  in  natiro  hahendo ;  plain- 
tiffs, notwithstanding  they  have  attornies,  in  porsdnal 
actions  are  not  to  appear,  nor  answer  in  judgment  by 
no  attorney,  but  he  disseiseth  his  client  when  he  doth  it. 


THE  CONTENTS  OF  THE  THIRD  CHAPTER. 


Of  exceptions 

What  is  exception,  and  the  division  and   order 

excepting 

Exceptions  dilatories 

Of  exception  of  clergy 

Exception  of  bigamy . 

Exception  of  the  power  of  the  judge 

Exception  to  the  person  of  the  judge 

Exception  of  time 

Exception  of  place 

Exception  to  the  person  of  the  plaintiff 

Exception  of  prison  and  of  ward 

Exception  of  summons 

Exception  of  vicious  counts 

Exception  of  approvers  

Exception  to  indictments 

Plea  to  treason 

Pleas  to  burning 

Pleas  to  murder 

To  larceny 

To  burglary 

Of  rape 

Of  imprisonment 

Of  mayhem  and  wounding 

Juramentum  duelli..    

The  order  of  battle 

Exception  of  personal  trespass 

Of  purprestures 

Of  treasure  trove  

Of  wrecks 

Of  usury 

Of  driving 

Of  obligation 

Of  attaint 

The  ordinance  of  attaint 

Of  oaths 

Homage 

Fealty  annexed  to  homage 

Common  oaths 

Of  final  accords 

138 


Section 

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XXXIX 

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CHAPTER   III. 

Sect.  I. 

Of  exceptions. 

It  behoveth  the  defendant  to  answer  the  plaintiff's 
declaration,  and  beeanse  the  people  commonly  know  not 
all  the  exceptions  in  pleadings ;  countors  are  necessary, 
who  know  how  to  advance  and  defend  their  clients 
causes  according  to  the  rules  of  law,  and  the  customs 
of  the  realm;  and  the  more  needful  are  they  to  defend 
them  in  indictments,  and  appeals  of  felony,  than  in  per- 
sonal or  venial  causes;  and  the  better  to  help  our 
memory,  which  every  day  inclincth  to  forgetfulness,  it 
is  necessary  to  shew  what  is  an  exception,  and  the  di- 
vision of  it,  and  the  order  of  excepting,  or  pleading; 
for  some  account  them  guilty  who  ])lead  not,  or  plead 
ill,  or  not  sufficiently;  for  exami)le,  if  any  one  vouch 
one  to  warranty,  and  judgment  pass  (if  he  tell  not  the 
year,  or  before  what  judges  the  judgment  passed)  it  is 
as  if  he  had  said  nothing;  and  so  of  other  cases,  and 
although  a  plea  be  requisite,  nevertheless  every  one  is 
not  received  to  plead ;  for  some  are  admitted  to  plead 

139 


140  WHAT  EXCEPTION  IS.  [Ch.  III.,  Sc.  2. 

without  tutors  in  all  actions,  and  some  not,  but  in 
felonies. 

Every  one  may  answer  without  a  tutor  who  is  not  for- 
bidden by  the  law. 

The  law  forbiddeth  married  women  to  answer  without 
their  husbands,  but  then  we  are  to  put  a  difference  in 
the  cases ;  for  if  she  be  within  the  age  of  one  and  twenty 
years,  she  is  not  admitted  to  plead  in  any  case  without 
her  husband,  but  in  case  where  her  disinheriting,  or 
that  which  doth  amount  to  as  much,  doth  appear  by  the 
malice,  or  negligence  of  her  husband ;  and  if  she  be  of 
full  age,  then  she  shall  so  answer  alone  in  cases  of 
death  and  felony ;  and  so  it  is  of  men  within  the  order 
of  religion,  and  of  villains,  and  of  all  those  who  are  in 
custody,  and  are  not  delivered. 


Sect.  2. 
What  exception  is,  and  the  order  of  excepiion,  or  plea. 

A  PLEA  of  exception  is  a  thing  alledged  for  answer^ 
either  to  delay  or  bar  the  action. 

And  there  are  two  manner  of  exceptions,  dilatories^ 
and  peremptories. 

The  order  to  plead  is  such,  that  the  peremptory  plea 
is  in  the  highest  degree,  for  the  dilatorv  may  have  a 
recourse  to  the  peremptory,  but  not  e  contra.     And  of 


CH.  11I.,SC.  3.J     EXCEPTIONS  OF  DILATORIES.  141 

dilatories  some  are  principal,  and  some  are  secondary, 
and  from  the  secondaries  there  is  no  recourse  to  the 
principals,  and  according  to  their  degrees  are  tliey  put 
in,  partly  to  help  our  remembrance. 

And  some  exceptions  are  in  counts,  in  replications, 
and  rejoinders,  and  so  forth,  until  the  truth  be  cleared 
in  the  proceedings  of  the  pleas,  whereby  one  may  surely 
come  to  give  clear  judgments. 

Voucher  to  warranty  lieth  not  in  personal  actions,  al- 
though that  averments  by  record,  and  muniments,  and 
Avitnesses  availeth. 


Sect.  3. 

Exceptions  of  dilatories. 

There  are  many  dilatory  exceptions,  whereof  the 
first  is  to  the  judge,  and  that  many  ways;  one  unto  the 
power  of  the  judge,  and  that  mav  be  in  two  kinds,  by 
reason  of  the  two  kinds  of  jurisdictions,  or  because  the 
king  or  his  judge  delegate  hath  no  power,  or  conusance 
in  the  cause,  as  it  is  of  the  person  of  a  clerk,  by  reason 
of  the  privileges  of  the  church ;  or  because  the  ordinary 
judge  hath  not  power  or  conusance  of  a  thing  done  out 
of  his  jurisdiction,  nor  any  one  within  a  franchise  of 
a  thing  done  in  guildable,  nor  kings,  nor  those  of  one 
country,  or  of  one  land,  of  things  done  in  another  land 
or  country. 


142  OF  EXCEPTIONS  OF. CLERGY.     [Ch.  III.,Sc.  4. 

Sect.  4. 
Of  exception  of  clergy. 

For  the  privilege  of  clergy ;  as  if  a  clerk  be  ordered 
in  court  before  a  lay  judge  to  answer  to  an  action  for  a 
23ersonal  trespass,  and  especially  in  a  case  criminal  and 
mortal  plead  that  he  is  a  clerk,  the  judge  hath  no  further 
conusance  of  the  cause,  for  the  church  is  so  enfran- 
chised, that  no  lay  judge  can  have  jurisdiction  over  a 
clerk,  thouffh  the  clerk  will  acknowledge  him  for  his 
judge;  and  in  such  a  case  he  is  without  delay  to  be  de- 
livered to  his  ordinarv. 

Nevertheless,  to  give  actions  to  plaintiffs  against  the 
accessaries  in  appeals  and  indictments,  it  belongeth  to 
the  judge  ex  officio  to  enquire  by  the  oaths  of  honest 
men,  in  the  presence  of  the  clerk,  whether  he  be  guilty 
or  not,  and  if  he  be  guilty  thereof,  then  he  is  without 
delay  to  be  delivered  to  his  ordinary,  and  the  plaintiff 
shall  sue  against  the  accessaries  in  the  king's  court, 
and  in  the  spiritual  court  against  the  clerk,  and  the 
clerk  after  his  due  purgation  made,  shall  without  delay 
have  all  his  lands  and  moveables  delivered  to  him. 


Ch.  III.,  Sc.  5.]     REPLICATION  OF  BIGAMY.  143 

« 

Sect.   5. 
Replication  of  bigamy. 

The  exception  of  clergy  is  sometimes  coiinter-plcad- 
able  by  a  replication  of  bigamy  in  this  manner : 

Sir,  he  ought  not  to  enjoy  the  benefit  of  this  privilege, 
for  he  hath  forfeited  the  same  by  the  sin  of  bigamy,  as 
he  who  hath  married  a  widow,  or  many  wives;  and 
note  that  matrimony  is  the  lawful  order  of  joining  to- 
gether of  a  Christian  man  and  woman  by  their  assents ; 
and  as  of  the  deity  and  humanity  of  Christ  there  is 
made  an  undissolveable  unitv;  so  was  matrinioiiv,  and 
according  to  such  unity  was  such  coupling  found  to  be, 
and  therefore  none  can  remain  in  that  unity  who  takes 
to  himself  a  plurality ;  and  of  a  plurality  ariseth  this 
offence  of  bigamy,  which  offence  draweth  clerks  nearer 
the  lay  power. 

And  note  that  bigamy  may  be  two  ways ;  one  by  a 
plurality  of  wives,  as  he  who  marrieth  two  wives  or 
more,  the  one  after  the  death  of  the  other,  or  outliving 
the  other;  the  other  is  plurality  of  husbands  as  well  as 
wives,  as  it  is  of  a  widow  Avho  sufFcrcth  hers(df  to  be 
married  to  another  man,  whether  her  widowhood  came 
by  the  death  of  her  husband,  or  by  divorce ;  and  because 
it  belongeth  to  say  in  what  point  a  clerk  is  bigamus, 
the  bigamy  is  triable  in  the  lay  court ;  if  nevertheless 


144  '  EXCEPTION  TO  THE  POWER     [Ch.  III.,  be.  6. 

the  jury  doubt  thereof,  then  the  ordinary  is  to  certify 
the  same  at  the  command  of  the  king,  as  in  the  case 
of  matrimony  when  it  is  denied.  On  the  other  side,  a 
clerk  is  incounterable  by  other  replications,  as  he  is  for 
being  a  murderer,  or  a  notorious  liar,  or  of  such  a  condi- 
tion as  the  church  is  not  to  protect  him  against  the  king's 
peace. 


Sect.   6. 

Exception  to  the  power  of  the  judge. 

Against  the  power  of  the  judge  the  defendant  may 
help  himself  by  other  dilatory  pleas  in  this  manner; 
Sir,  I  demand  the  sight  and  the  hearing  of  the  com- 
mission, whereby  you  claim  jurisdiction  over  me;  and 
if  the  judge  do  not  deny  it,  or  cannot  shew  it  (notwith- 
standing that  no  judge  delegate  is  compellable  to  shew 
his  power),  yet  may  the  party  plead  thus;  Sir,  I  ap- 
peal from  this  commission,  because  it  maketh  no  men- 
tion of  the  cause  for  which  I  Avas  brought  to  judgment, 
or  not  of  that  point ;  or  because  you  have  no  conusance 
in  such  a  point ;  or  because  it  is  vicious ;  and  that  may 
be  divers  ways,  as  if  it  be  not  sealed  with  the  king's 
seal  of  the  chancery ;  for  none  is  tied  to  yield  obedience 
according  to  the  laws  and  customs  of  the  realm  to  the 
king's  privy  seal,  or  to  the  seal  of  the  Exchequer,  nor 


Ch.  III.,  Sc.  5.]  OF  THE  JUDGE.  145 

unto  any  other  seal,  but  only  to  the  seal  which  is  as- 
signed to  be  known  of  the  common  people,  and  especially 
in  jurisdictions  and  original  writs,  if  not  for  the  king 
only.  Or  it  may  be  vicious  because  the  seal  is  counter- 
feited or  falsified,  or  because  the  king  is  not  named  in 
the  writ,  he  not  being  out  of  the  kingdom,  nor  in  ward; 
or  because  the  writ  containeth  summons  in  the  action 
where  it  is  personal,  or  attachment  where  the  action  is 
mixt  or  real,  or  because  the  seal  is  not  fastened  to  the 
parchment,  but  one  may  remove  it,  and  take  it  from  it 
at  his  pleasure ;  or  because  the  writ  was  brought  too  late, 
or  too  soon ;  or  because  it  hath  rasure,  or  interlining, 
and  diversity  of  hands,  and  of  words,  or  false  Latin; 
or  because  the  writ  is  written  upon  paper,  or  parchment 
which  is  forbidden ;  or  for  default  found  in  the  writ,  as 
the  omission  or  transposition  of  a  word,  syllable  or 
clause,  as  it  is  of  abatable  writs;  or  because  the  king 
died  before  the  writ  was  brought,  or  because  the  writ  is 
false  in  the  day  of  the  date,  or  because  the  commission 
requireth  the  association  of  one  who  is  not  present ;  or 
because  the  writ  was  never  sealed,  or  because  the  fact 
was  not  done  within  his  jurisdiction,  or  in  a  place  not 
there  determinable,  or  because  the  judge  hath  not  power 
or  conusance  either  of  the  quality  or  the  quantity  of 
the  thing. 


146     EXCEPTION  TO  THE  JUDGE,  ETC.  [Ch.  III.,  Sc.  7 

Sect.  7. 

Exception  to  the  person  of  the  judge. 

Although  the  writ  be  good,  and  the  power  be  suf- 
ficient, yet  there  holds  dilatory  exceptions  to  the  per- 
son of  the  jndge  (as  it  is  said)  of  such  persons  who  can- 
not be  judges. 


Sect.  8. 
Exception  to  the  time. 

Other  dilatories  there  are  of  time,  of  place,  of  hours, 
of  manners,  etc. 

And  note,  there  are  three  manner  of  times  exempted 
from  pleas,  in  which  no  parties  sit  in  courts  to  give  judg- 
ments, wlT,ereof  two  are  by  law,  and  the  other  at  the 
Avill  of  the  king. 

One  time  containeth  two  months,  viz.  August  and 
September,  which  are  assigned  to  gather  in  the  fruits 
of  corn,  etc. 

The  other  times  containeth  the  feasts^  and  the  Sun- 
days, which  are  appointed  festivals  for  the  honouring 
of  God,  and  the  saints,  which  feasts  are  these: 

1    The  day  of  the  birth  of  Christ,  of  St.  Stephen^  of 


Ch.  III.,  So.  9.]     EXCEPTION  OF  THE  PLACE.  I47 

St.  Silvester,  and  the  epiphany,  iind  the  purification  of 
our  ladj,  Easter  week,  of  tlic  rogations,  which  contain 
three  days ;  of  the  ascension,  of  Pentecost,  of  the  na- 
tivity of  St.  JoJiu  the  baptist,  of  the  twelve  apostles,  of 
St.  Lawrence,  and  of  the  assumption  of  the  mother  of 
God,  and  her  nativity,  of  St.  Michael,  and  of  All  Saints, 
and  of  St.  Martin,  with  all  such  feasts  which  all  bishops 
hold  festivals  in  their  bishopricks,  for  that  they  are 
canonized ;  besides  these  the  days  of  relicks,  of  the  an- 
nunciation of  the  mother  of  God,  and  of  her  conception, 
and  of  the  invention  of  the  cross. 

And  note,  that  wliercas  God  commanded  to  keep  holy 
the  Sabbatli  day  ;  it  was  ordained,  after  the  resurrection, 
that  we  keep  holy  the  Sabbath  days. 

The  third  time  is  forbidden  bj'  the  king's  proclama- 
tion, of  hours  may  arise  dilatories,  for  after  the  hour  of 
noon,  or  in  the  night,  no  plea  is  to  be  holden. 


Sect.   9. 

Exception  of  the  place. 

Or  the  manner  arise  dilatory,  for  in  riding,  nor  in 
walking,  nor  in  taverns,  nor  elsewhere,  but  in  known 
places  for  a  consistory  can  any  court  be  holden. 


148  EXCEPTION  OF  TUE  PLAINTIFF.     [Ch.  III.,  Sc.  10. 

Sect.   10. 

Exception  to  the  person  of  the  plaintiff. 

Other  exceptions  dilatories  arise  from  the  persons 
of  some  plaintiifs,  as  it  is  of  those  persons  who  are  re- 
bukeable  of  accusations.  Other  exceptions  dilatories 
rise  from  the  persons  of  the  pleaders,  or  of  the  attornies, 
or  of  the  essoiners,  for  none  can  do  that  by  his  attorney 
which  himself  cannot  do,  nor  can  any  be  an  essoiner^ 
attorney,  or  pleader  who  may  not  be  a  plaintiff. 


Sect.   11. 
Exception  of  person,  mid  of  his  custody. 

Or  he  may  take  exception  against  his  own  person,  and 
say  that  he  is  not  within  the  king's  power,  or  if  he  be 
imprisoned  for  a  greater  offence,  or  appealed  or  in- 
dicted of  crime,  or  of  a  higher  crime;  or  he  may  say, 
that  he  is  not  bound  to  answer  thereunto,  for  as  much 
as  he  is  not  brought  to  judgment  by  a  right  course, 
which  willeth  that  no  man  may  be  attached  by  his  body, 
when  he  is  distrainable  by  his  lands  or  other  goods,  if 
not  for  a  personal  offence. 

Or  he  may  say,  that  he  is  not  tied  to  answer  to  any 


Ch.  III.,  Sc.  12.]     EXCEPTION  OF  SUMMONS,  ETC.  149 

action  which  toucheth  loss  of  life  or  member,  or  right 
of  property,  until  he  be  of  the  full  age  of  one  and  twenty 
years  or  more;  and  there  are  other  dilatories  of  the  per- 
sons of  the  answerers,  which  appear  before. 


Sect.   12. 

Exception  of  summons. 

In  pleas  of  summons  he  may  say,  he  ought  not  to 
answer,  because  the  plaintiff  holdeth  no  suit  of  dis- 
tress, nor  hath  any  other  manner  of  proof  present;  or 
because  the  plaintiff  hath  not  found  sureties  to  pursue 
his  plaint,  or  because  he  was  not  summoned,  or  not 
reasonably  summoned,  or  that  he  received  the  summons 
by  no  freeman,  or  but  by  one  freeman ;  or  because  he 
was  summoned  too  late,  or  because  he  was  never  sum- 
moned, what  thing  to  answer  to,  or  because  he  was  not 
summoned  against  the  plaintiff. 


Sect.   13. 

Exceptions  of  ricious  counts. 

As  writs  which  are  vicious  are  abateable,  so  also  are 
vicious  appeals ;  as  if  the  appeals  be  not  brought  within 
the  year  after  the  felony  done,  or  not  before  the  coroner, 


150        EXCEPTION  OF  VICIOUS  COUNTS.     [Ch.  III.,  Sc.  13. 

or  not  in  the  county  where  the  offence  was  done,  or  not 
in  a  right  place,  or  for  variance,  or  for  omission,  or  in- 
terruption, or  because  the  j^laintiff  is  barred  against 
others  in  the  same  appeal. 

Sometimes  it  happeneth  that  the  thing  which  is 
robbed  or  stolen  is  found  in  the  possession  of  a  true 
man,  against  whom  the  owner  of  the  property,  or  of 
the  possession  frameth  his  appeal,  as  he  who  is  a  rob- 
ber of  another,  in  which  case  there  is  a  difference ;  for 
if  it  be  found  that  such  a  thing  was  given,  sold,  or  de- 
livered to  him  without  collusion,  in  such  case  the  pos- 
sessor is  acquitted,  or  at  least  bailable  until  the  next 
coming  of  the  justices;  and  when  the  justices  come,  the 
first  possessor  thereof  is  to  be  arrained,  and  he  may 
shew  how  it  came  to  him  ;  nevertheless  if  he  would  vouch 
one  to  warrant  it  he  cannot,  nor  deny  the  title  of  his 
possession,  but  in  the  name  of  voucher  he  may  say,  that 
it  came  to  him  by  lawful  title,  as  that  he  bought  it  in 
such  a  market,  or  in  such  a  place,  without  mentioning 
of  whom ;  and  the  sheriff  is  thereupon  to  cause  a  jury 
to  be  impanelled,  and  if  the  answer  be  found  true,  then 
he  is  acquitted,  and  if  not,  then  to  be  condemned  as  be- 
fore, as  if  the  plaintiff  had  proved  the  felony. 

And  if  any  one  appear,  and  justify  the  thing  to  be 
his,  he  is  not  to  be  received  as  a  party,  but  the  cause 
is  first  to  be  tried  betwixt  the  two  firsts,  and  afterwards 
he  may  make  the  estranger  a  party  if  he  will ;  and  if 
the  case  be  that  the  buying  was  within  a  place  within 


(JH.  III..,  Sc.  13.]  EXCEPTION  OF  VICIOUS  COUNTS.        151 

a  franchise,  and  the  sheriff  return,  that  he  cannot  exe- 
cute the  writ  by  reason  of  the  franchise  of  such  a  man, 
or  of  such  a  ])lacc ;  in  such  case  the  sheriff  is  to  be 
commanded  that  he  forbear  not  by  reason  of  the  fran- 
chise, but  that  he  enter  and  execute  the  writ. 

And  if  the  possessor  saith,  that  he  came  to  the  thing 
from  a  man  certain,  and  he  be  present,  and  will  main- 
tain the  same  without  collusion,  he  is  to  be  admitted 
thereunto,  and  the  other  is  to  be  discharged ;  and  if  he 
deny  the  contract,  this  affirmative,  and  this  negative 
are  triable  by  battle  or  jury;  nevertheless  at  the  king's 
suit  the  possessor  ought  to  make  title  to  the  possession, 
or  clear  himself  thereof;  for  two  things  are  necessary, 
conscience  for  us,  and  fame  against  others. 

And  that  which  is  said  of  making  of  title  to  the 
possession  of  things,  in  case  where  a  false  writ,  or  false 
money,  or  larceny,  or  thing  lost,  or  estray,  or  other  hurt 
is  found  at  the  king's  suit,  although  that  the  last  pos- 
sessor acquit  himself  of  the  felony;  if  the  plaintiff 
nevertheless  prove  the  thing  to  be  his,  as  of  his  posses- 
sion, or  stolen  from  another,  or  otherwise  lost,  the  law  is, ' 
that  he  recover  the  thing  without  any  payment  for  it. 

Or  he  may  have  exception  dilatory  to  a  vicious  deed, 
for  variance  betwixt  the  words  of  the  writ  and  the  na- 
ture of  the  action,  and  the  count,  as  if  he  have  omitted 
to  charge  me,  or  if  he  charge  that  in  the  count  which 
was  not  to  be  in  that  action,  as  felony  in  a  venial  action. 

And  as  the  defendant  hatli   a   dilatory  exception  to 


152  EXCEPTION  TO  APPROVERS.     [Ch.  III.,  Sc.  14. 

abate  a  vicious  count,  in  like  manner  hath  the  plaintiff 
a  replication  against  the  defendant  upon  a  faulty  an- 
swer ;  but  because  none  is  to  be  judged  for  not  answer- 
ing in  appeals  of  felony,  it  is  sufficient  for  every  one  to 
deny  the  felony  generally,  though  he  answer  not  par- 
ticularly to  every  word  mentioned  in  the  appeal. 

And  in  cases  venials,  where  the  defendants  say  noth- 
ing in  excuse  of  that  which  is  offered  against  them  in 
judgment,  they  are  to  be  adjudged  and  condemned  as 
not  answering  at  all ;  in  the  same  manner  it  is  where  one 
answereth  not  duly,  or  insufficiently. 


Sect.  14. 
Exception  to  approvers. 

To  an  approver  one  may  thus  answer;  Sir,  I  am  a 
true  man,  sworn  to  the  king,  and  within  a  frank-pledge ; 
and  this  approver  is  a  felon  attainted  by  his  own  con- 
fession, and  out  of  the  king's  protection,  and  by  con- 
sequence out  of  the  king's  peace,  whereby  he  hath  lost 
his  free  voice,  and  lost  every  right,  and  every  action,  so 
as  he  is  not  to  be  admitted  in  any  action,  no  more  than 
a  man  who  is  outlawed  by  judgment. 

Or  he  may  plead,  that  he  ought  not  to  answer  him, 
because  he  did  not  appeal  him  in  his  first  appeal,  or 
not  before  the  coroners,  and  if  the  approver  cannot  help 


Ch.  III.  Sc.  15.]     EXCEPTIONS  TO  INDICTMENTS.  15^ 

himself  by  this  replication,  as  to  say,  that  he  is  not  any 
way  out  of  the  king's  protection  ;  the  defendant  is  bound 
to  answer  him,  but  he  is  not  to  be  delivered  to  the  free- 
pledges  where  he  is  in  the  decennary ;  or  to  other  main- 
prisors  until  he  be  appealed  or  indicted. 


Sect.   15. 

Exceptions  of  indictments. 

These  exceptions  hold  to  indictments;  Sir,  I  demand 
sight  of  the  indictment,  whereby  I  may  take  exceptions 
against  the  persons  of  the  indictors,  or  to  the  form  of  the 
indictment,  for  no  villain  can  indict  any  man. 

Or  if  the  indictment  be  not  made  by  the  whole  dozein 
of  freemen,  or  by  others  who  cannot  indict  any  man. 

Or  if  the  indictment  be  not  sealed  with  the  seals  of 
the  twelve  jurors,  or  that  it  is  not  the  record  of  judges 
authorized  thereunto;  or  if  the  indictment  hath  not 
been  within  the  year,  or  by  people  of  credit,  and  of 
good  fame,  no  man  is  bound  to  answer  to  such  an  in- 
dictment. 

Nor  if  the  indictment  hath  not  been  made  within 
the  neighbourhood  of  the  same  county,  also  if  the  in- 
dictment be  general,  for  a  general  slander  defameth  no 
man,  nor  is  he  compelled  to  answer  thereunto;  as  if  the 
indictment  be,  such  a  one  is  a  murderer  or  a  thief,  or 


154  AN  ANSWER  TO  TREASON.     [Ch.  III.,Sc.  16. 

wicked,  without  alledging  any  particular  offence  there- 
in, for  to  the  common  fame  of  the  people  an  indictment 
ought  to  give  no  credit  or  belief. 

Or  he  may  say,  that  the  justices  went  the  Eyre  after 
the  felony  done,  where  nothing  was  moved  of  this 
felony. 


Sect.   16. 
An  answer  to  treason. 

Darling  here  denies  all  treasons  and  felonies,  and 
whatsoever  is  against  the  king's  peace. 

And  as  to  the  consideration  he  may  say  thus ;  Sir,  not- 
withstanding the  joint  alliance  betwixt  us  by  homage 
sometimes  before  this  time,  nevertheless  when  he 
counted  that  I  should  commit  this  treason,  I  had  yielded 
up  to  him  all  the  lands  which  I  held  of  him,  or  I  lost 
them  by  judgment,  or  by  disseisin,  which  the  plaintiff 
did  to  me,  or  he  appointed  them  to  come  to  others;  in 
which  case  the  felony  is  barred,  and  the  plaintiff  is 
condemnable. 

And  as  to  the  consideration  of  present  fealty  he  may 
say,  that  this  alliance  the  plaintiff  forfeited  against 
him  in  such  a  point,  or  such  a  point ;  such  fealty  issued 
out  of  such  lands  whereof  the  defendant  was  not  then 
tenant,  neither  in  demesne  nor  in  service. 


Ch.  III.,  Sc.  17-18.]     BURNING. -MURDER.  155 

And  to  the  alliance  of  curtesy  he  may  say,  that  such 
benefit  was  not  to  continue  hut  until  a  time  past  before 
the  time  named  in  the  appeal,  for  afterwards  he  paid 
him  nothing  of  such  pension,  or  other  curtesy  but  by 
judgment  had  against  him,  and  in  despite  of  him;  or 
thus,  before  the  time  named  in  the  apiH'ul  he  yielded  u]) 
to  him  his  deed  of  the  pension,  or  released  the  same 
unto  him,  or  quit-claimed  the  same  whereby  the  alliance 
was  destroyed. 


Sect.   17. 
Burning. 


To  burning  he  may  say,  that  the  mischief  came  by 
mischance,  and  not  of  a  premeditated  felon. 


Sect.   18. 
Murder. 


To  an  appeal  of  murder  he  may  plead,  that  the  ac- 
tion belongeth  not  to  such  women  as  the  wife  of  the 
plaintiff,  because  he  was  not  killed  in  her  arms,  or  in 
her  seisin.  Or  thus.  Sir,  the  plaintiff  is  to  have  no 
action,  for  as  much  as  there  is  one  nearer  of  blood  who 
hath  brought  his  appeal,  and  is  a  person  of  ability  so  to 


156  ROBBERY  OR  LARCENY.     [Ch.  III.,  Sc.  18. 

do ;  or  he  may  say,  that  he  is  not  boimden  to  answer 
in  England  unto  an  act  done  out  of  the  realm,  if  the 
thing  concern  not  the  king's  right,  as  his  person,  or  his 
inheritance ;  nor  in  a  privileged  place  where  the  king's 
writ  runneth  not  of  an  act  done  in  a  foreign  place,  nor 
e  contra  in  a  franchise,  of  an  act  done  in  guildable ;  or 
he  may  say,  that  he  did  it  not  feloniously,  but  by  mis- 
chance, or  by  a  lawful  judgment ;  or  thus,  not  against 
the  peace  as  a  fugitive,  or  as  a  known  felon,  or  as  one 
who  was  not  within  allegiance  to  the  king  at  the  time 
of  the  killing. 


Sect.   19. 

Robbery  or  larceny. 

To  an  appeal  of  robbery  or  of  larceny  he  may  plead,, 
that  he  wrongfully  bringeth  this  appeal,  for  as  much 
as  the  plaintiff  brought  an  action  of  trespass  against  the 
same  persons  of  the  same  before  such  judges;  and  if 
any  one  would  cover  his  larceny  by  colour  of  avowry 
for  an  estray,  or  a  waif,  in  such  case  it  behoveth  that  he 
shew  forth  a  title  allowable  for  such  a  franchise;  but 
this  exception  is  counter-pleadable  by  his  peremptory 
replication ;  Sir,  such  avowry  ought  not  to  be  of  any 
force,  because  he  presently  carried  away  the  estray,  or 
waif  so  found,  or  changed  it,  or  sold  it,  or  killed  it,  or 


Chap.  111.,  Sc.  20  J       OF  BURGLARY.  157 

put  it  out  of  the  view,  or  from  the  knowledge  of  the 
neighbourhood ;  whereas  he  ought  to  have  publickly 
cried  it  in  three  markets  and  monasteries  next  adjoin- 
ing, and  keep  it  in  a  common  place  for  a  whole  year. 

To  the  exception  of  distress  holds  this  replication ; 
Sir,  such  avowry  ought  not  avail  him,  because  he  was 
not  a  known  bailiff  in  such  a  hundred  ;  or  because  he  did 
not  any  thing  in  the  manner  of  a  distress,  as  not  in  a 
due  time,  nor  had  any  warrant,  but  took  it  in  the  night 
time,  or  in  such  other  manner  feloniously  robbed  him, 
and  stole,  etc.,  and  in  the  like  manner  may  a  replication 
hold  against  a  robbery  made  by  colour  of  disseisin. 


Sect.  20. 

Of  burglary. 

To  burglary  he  may  say  that  he  entered  into  the 
tenements  without  doing  any  felony,  and  not  against 
the  peace,  as  into  his  own  demesne  and  freehold. 


Sect.  21. 
Of  rape. 


In  appeal  of  rape  he  may  deny  the  felony,  and  say 
that  he  ravished  not  her  against  her  will,  but  that  she 


loS  OF  INPRISONMENT.  [Ch.  III.,  Sc.  22. 

assented,  and  that  appeareth  because  she  conceived  bj 
him  at  the  same  time,  and  there  is  no  presumption  that 
she  was  ravished  against  her  will  by  fouling  of  her  gar- 
ments, nor  shedding  of  blood,  nor  hue  and  cry  made, 
or  other  manner  of  violence  offered. 


Sect.   22. 

Of  imprisonment. 

To  the  appeal  of  imprisonment  he  may  say,  that  he 
did  it  by  force  of  a  rightful  judgment  of  such  a  judge ; 
but  to  that  plea  is  this  replication  good,  that  after  there 
came  a  warrant  to  him  to  deliver  him,  he  kept  him  in 
prison  for  the  time  named  in  the  appeal. 


Sect.   23. 

Of  mayhem  and  wounding. 

In  mayhem  he  may  demand  the  view  thereof,  for  he 
cannot  lawfully  complain  when  there  is  no  mayhem  to 
be  judged  of;  and  of  appeal  of  wounding  in  the  same 
manner.  By  the  death  of  the  king  all  pleas  are  sus- 
pended, all  gaols  opened,  no  judge,  bailiff,  or  other  of- 
ficer ought  to  intermeddle  therewith  for  want  of  war- 


Ch.  III.,Sc.  23.J  OF  MAYHEM  AND  WOUNDING.     159 

rant,  and  all  outlaws,  and  all  waives,  and  those  who 
have  forjured  the  realm,  and  all  banished  persons  used 
then  to  return,  except  those  who  were  exiled  and  ban- 
ished for  ever ;  and  if  any  recovered  before  for  that  he 
could  not  have  debt,  if  he  were  not  justified  to  the 
peace;  and  if  he  be  brought  to  judgment,  and  if  he  be 
accused  of  outlawry,  he  may  say  that  he  is  discharged 
of  the  outlawry  by  the  king's  grant ;  or  he  may  say 
that  the  outlawry  ought  not  to  prejudice  him  because 
he  was  under  the  age  of  21  years  at  the  time  of  the  out- 
lawry, and  therefore  that  he  was  not  outlawed  for  the 
felony. 

Or  because  the  felony  was  not  done  in  such  a  county, 
or  because  he  was  not  outlawed  in  England,  or  not 
within  the  king's  dominion  where  the  writ  runneth; 
for  an  outlawry  pronounced  against  a  man  in  the  bish- 
oprick  of  Durham,  or  elsewhere  in  the  land  where  the 

.  king's  writ  doth  not  run,  shall  prejudice  as  one  in  the 
land  where  the  king's  writ  vunnotli,  nee  e  contra. 

Or  because  the  felony  was  not  done  in  the  time  of 
this  king,  or  not  since  the  last  Eyre  in  that  county ;  or 
because  the  process  of  the  outlawry  w^as  false,  by  a  false 

'warrant,  or  without  any  warrant,  or  because  he  lay 
sick,  and  was  essoined  de  malo  lecti,  or  because  he  is 
alive  for  whose  death  he  was  outlawed  ;  or  because  he 
was  imprisoned  the  day  of  the  outlawry,  or  because  he 
was  ill  the  king's  service  in  the  Holy  Land,'  or  within 
the  realm  for  the  profit  of  the  commonwealth. 


160  OF  MAYHEM  AND  WOUNDING.    [Ch.  III.,  Sc.  23. 

Or  because  he  had  the  king's  protection,  or  because 
lie  was  a  madman,  or  an  ideot,  or  deaf,  or  dumb,  or 
professed  in  religion;  in  which  cases  if  he  pray  to  be 
received  to  answer,  he  is  to  be  received. 

And  the  plaintiff  was  to  be  demanded,  and  it  was  to 
"be  proclaimed,  that  if  any  one  could  shew  why  he  should 
not  be  enlarged,  that  he  appeared  at  a  certain  day. 

All  parties  in  judgment  are  necessary  to  be  present, 
and  they  are  to  have  Oyer  of  the  writs,  of  the  original, 
the  plaintiff's  commission,  the  quantity  or  the  quality 
of  his  plaint.  And  the  disseisor  or  their  bailiffs,  every 
one  of  them  for  himself  may  say  in  this  manner,  he  may 
answer  and  say  for  himself,  that  he  hath  not  done  any 
-wrong  or  disseisin,  nor  hath  any  thing  in  the  tenements 
put  in  the  plaints;  and  he  may  so  answer,  and  so  of 
others  till  it  come  to  the  tenant  in  whose  name  the  dis- 
seisin was ;  and  he  may  answer  and  say,  that  he  is  not 
in  by  disseisin,  but  is  in  by  D.  who  enfeoffed  him  who 
is  not  named  in  the  writ ;  and  it  may  be  that  D.  entred 
by  E.  and  so  there  may  be  many,  according  to  divers 
feoffments  betwixt  the  first  disseisor  and  the  tenant, 
in  which  cases  no  voucher  to  warranty  holdeth  place 
for  a  personal  trespass,  and  therefore  every  one  is  well 
to  look  not  to  make  a  contract  of  a  vicious  thing,  and 
that  he  take  caution,  and  such  surety  in  the  contract 
that  he  may  have  a  recourse  to  recover  if  he  lose  the 
thing;  and  therefore  the  lords  used  to  keep  their  manors 
that   none   could   enter  by   intrusion,   disseisin,   or  by 


Ch.  III.,  Sc.  2:j.]  OF  MAYHEM  AND  WOUNDING.     161 

other  vicious  bargains,  nor  nrlicrwiso  unless  the  bar- 
gains were  entered  in  their  full  courts,  whereby  the 
lords  could  not  have  received  their  enemies  into  their 
manors,  nor  have  taken  their  homage  against  their  wills, 
nor  any  used  to  enter  before  they  have  found  sureties 
to  restore  to  the  purchaser  or  his  heirs  the  value  of  the 
thing,  if  by  rightful  judgment  it  belonged  to  him  after 
his  thing  lost  for  the  offence  of  alienation,  or  for  his 
power  of  this  warranty. 

To  the  principal  disseisor  it  belongeth  to  have  a  re- 
gard, if  the  plaintiff  put  more  into  his  plaint,  that  he 
answer  not  but  to  that  which  he  may  avow;  he  may  say, 
that  there  is  variance  betwixt  the  original  and  the  com- 
mission;  or  that  the  writ  is  vicious,  as  it  is  in  mis- 
prision of  names,  or  sur-names. 

Of  names,  as  Renand  for  Harrand,  Margery  for 
Margaret,  and  such  like;  or  he  may  say  the  writ  is 
faulty  for  want  of  sur-names,  or  if  the  names  of  dig-nity 
be  omitted ;  as  if  a  bishop,  abbot,  prior  or  other,  be  dis- 
seised of  any  thing  in  the  right  of  his  dignity,  and  he 
makes  his  plaint  simply  of  a  trespass  done  only  to  his 
person,  and  not  to  his  church  or  dignity  in  this  manner; 
A.  complains  to  you,  whereas  he  ought  thus  to  make 
his  plaint.  A.  bishop  of  London,  and  so  it  is  of  dis- 
seisors ;  or  he  may  say,  that  the  writ  is  vicious,  because 
the  plaintiff  who  is  solely  in  the  plaint  hath  no  cause 
of  action,  but  with  another  who  is  not  named  in  the 
writ. 


162      OF  MAYHEM  AND  WOUNDING.  [Ch.  III.,  Sc.  23. 

Or  it  may  be  faulty  if  it  be  not  contained  in  tbe 
writ,  disseisivlt  eum,  where  it  ought  to  be  desseisivit 
cam,  or  eos,  where  it  should  be  eum  or  earn,  et  e  contra. 

It  is  contained  in  the  writ,  (wrongfully  and  without 
judgment)  etc.,  and  to  that  one  may  plead  not  wrong- 
fully, but  rightfully,  denying  any  other  force, 

And  note,  that  one  may  be  disseised  wrongfully  and 
without  judgment,  and  wrongfully  and  by  judgment;  as 
it  is  of  those  who  are  disseised  of  their  freeholds  by 
the  judges  who  have  no  jurisdiction,  and  nevertheless 
adjudge  men  to  be  put  out  of  their  possessions ;  and  one 
may  be  rightfully  and  without  judgment,  as  in  the  cases 
aforesaid ;  and  further  rightfully  and  by  judgment,  and 
thereof  rise  exceptions,  and  so  not  without  judgment 
and  yet  by  judgment,  and  that  may  be  either  by  the 
judgment  of  judges  commissaries,  or  judges  ordinaries 
as  were  the  suitors. 

Again,  writs  may  be  vicious  by  misprision  of  the 
names  of  the  towns,  as  if  a  hamlet  be  named  for  a 
town ;  or  if  the  town  be  not  right  named,  or  if  the  town 
be  not  distinguished,  where  there  are  two  towns  of  like 
name  in  the  same  county. 

And  from  these  Avords  (after  the  term)  may  arise 
exceptions;  as  if  not  the  term  yet  he  might  have  dis- 
trained for,  or  the  arrearages  of  his  pension,  or  special 
obligation,  except  that  he  had  any  wrong. 

Or  because  another  writ  for  the  same  action  is  yet 
depending  betwixt  the  same   parties;   or  he  may  say 


Ch.  III.,  Sc.  23.]     OF  MAYHEM  AND  WOUNDING.  10-^ 

that  he  wrongfully  complains,  whereas  at  his  own  plaint 
he  lost  the  same  tenement  hy  a  lawful  judgment  against 
him  ;  or  that  he  hath  released  or  quit-claimed  all  his 
right,  or  to  the  same  jjurpose,  or  otherwise  ratified  his 
estate,  or  because  at  another  time  he  withdrew  his  action 
before  such  judges. 

For  the  helping  of  the  peoples  memories  are  escripts, 
charters  and  muniments  very  necessary,  to  testify  the 
conditions  and  the  points  of  contracts;  for  by  the  statute 
of  Lenfred,  who  oi'daiued  that  one  might  deny  con- 
tracts by  waging  of  his  law,  and  that  plaintiffs  prove 
their  writings,  otherwise  their  charters  which  are  not 
denied,  and  not  to  be  shewed  by  jurors  in  England  for 
foreign  contracts,  of  i)laces  enfranchised,  or  elsewhere, 
where  the  king's  ^yrits  run  not,  by  copies,  or  collation  of 
the  seals  of  others,  or  by  jurors,  or  by  battle,  according 
to  the  plaintiffs  action. 

To  give  matter  and  way  to  exceptions  in  the  aid  of 
those  who  are  to  answer,  one  is  to  know  the  end  and 
limitation  of  actions,  and  of  pleas,  so  that  the  pleas 
may  have  an  end,  and  therefore  prescriptions  were  or- 
dained, whereof  Thurmond  ordained,  that  criminal 
actions  for  revenge  should  cease  at  the  year's  end,  if 
they  were  not  brought  before,  and  the  same  time  he 
appointed  in  all  actions  for  wrecks,  estraies,  waif,  and 
of  things  lost;  in  personal  actions  venial  he  appointed 
the  term  after  tli(^  last  Eyre  in  those  parts;  in  real 
actions  and  mixt  he  appointed  forty  years,  nevertheless 


lOi     OF  MAYHEM  AND  WOUNDING.  [Ch.  III.,  Sc.  23. 

as  to  the  king  in  the  riglit  of  his  crown,   and  to  the 
frank  estate  nullum  tempus  occurrit. 

To  an  action  of  account  he  may  say,  that  he  never 
-was  his  receiver,  nor  administrator  of  his  goods,  nor  of 
his  monies,  whereby  he  was  bound  to  render  him  any 
iiccount,  and  that  he  received  them  of  him  under  the 
title  of  buying,  whereof  he  gave  him  a  writing  to  sur- 
Tender  at  a  certain  time;  or  thus,  notwithstanding  he 
was  his  receiver  or  administrator  in  a  franchise,  or  else- 
where out  of  the  realm,  or  in  a  privileged  place,  where- 
bv  he  is  not  bounden  to  give  him  an  account  within  the 
realm,  nor  where  the  king's  writ  runneth,  or  is  guild- 
able,  or  e  contra. 

Or  he  may  say  that  the  writ  is  vicious  by  false  sup- 
position, and  falsely  supposeth  the  defendant  to  be  a 
fugitive,  and  besides  not  a  freeholder  within  his  baili- 
wic  to  whom  the  writ  is  sent. 

Or  he  is  not  bound  to  yield  him  any  account  for 
that  he  was  never  receiver  of  his  own  hand,  or  of  his 
daily  receipt  he  gave  him  a  daily  account;  or  that  he 
disbursed  nothing,  nor  brought  any  thing  but  in  the 
plaintiff's  sight,  or  of  some  of  his;  or  for  that  the  plain- 
tiff by  tallies  and  other  rolls  hath  discharged  him  of  so 
much  in  value  as  the  defendant  was  to  give  an  account 

for. 

Or  because  he  hath  made  him  an  acquittance  thereof, 
or  because  he  was  never  guardian  of  his  inheritance 
as  his  g-uardian,  but  was  guardian  during  the  time  of 


Ch.  III..  Sc.  2:3.]  OF  MAYHEM  AND  WOUNDING.      165 

the  thing  f(;r  his  own  proper  use,  or  it  belongcth  to  him 
that  is  guardian  of  the  huuls  in  the  right  of  his  fee, 
wiicthcr  it  be  socage  or  other. 

To  tlie  action  of  villanage  he  may  say,  that  he  is  a 
freeman,  and  that  he  hath  proved  the  same  at  another 
time  hy  a  writ  of  lihertate  probanda,  that  he  is  quit 
from  any  challenge  by  the  plaintiif  for  ever,  if  he  have 
no  reasonable  counter-plea  against  it. 

As  to  the  seisin  of  villain  services  he  may  say,  that 
he  did  those  services  wrong-fully,  by  extortion,  and 
duress  of  him  and  his  bailiffs,  or  for  the  service  of  vil- 
lanage and  villain  land  which  he  held  of  him,  and  not 
by  service  of  blood ;  and  there  are  two  other  things, 
the  one  that  if  the  defendant  can  shew  a  free  stock  of 
his  ancestors,  either  in  the  conception  or  in  the  birth, 
the  defendant  hath  always  been  accounted  for  a  free- 
man, although  his  father,  mother,  brother  and  cousins, 
and  all  his  parentage  acknowledge  themselves  to  be  the 
plaintiff's  villains,  and  do  testify  the  defendant  to  be  a 
villain. 

The  other  thing  to  be  noted  is,  that  no  more  than 
the  long  tenure  of  copyhold  land  maketh  a  freeman  a 
villain,  the  long  tenures  of  freehold  maketh  a  villain 
a  freeman;  for  freedom  is  never  lost  by  prescription  of 
time. 

There  are  many  manner  of  proofs  by  the  same  pleas, 
sometimes  by  records,  sometimes  by  battle,  sometimes 


166     OF  MAYHEM  AND  WOUNDING.  [Ch.  III.,  Sc.  23. 

by  witnesses,  sometimes  by  the  confessions  of  the  ad- 
verse parties. 

1  By  record,  as  in  case  where  the  parties  do  agree 
together  upon  some  inrohiient,  or  to  the  judgment  of 
some  judge  ordinary  or  assigned. 

2  By  battle,  for  upon  warrant  of  the  combat  which 
the  judges  took  betwixt  David  for  the  people  of  Israel 
of  the  one  party,  and  Goliah  for  the  Philistines  on  the 
other  party,  is  the  usage  of  battle  allowable  by  the  law 
in  England,  so  that  the  proof  of  felony  and  other  cases 
is  done  by  combat  of  two  according  to  the  diversities  of 
the  actions ;  for  as  there  is  a  personal  action  and  a  real, 
so  there  is  a  personal  combit  and  a  real ;  personal  in  per- 
sonal actions,  real  in  reals ;  and  these  combats  are  differ- 
ing in  this,  that  in  a  personal  combat  for  felony  none  can 
combat  for  another,  nevertheless  in  actions,  personals, 
venials,  it  is  lawful  for  the  plaintiffs  to  make  their  bat- 
tles by  their  bodies,  or  by  loyal  witnesses,  as  in  the  right 
of  real  combats,  because  that  none  can  be  witness  for 
himself;  and  no  man  is  bound  to  discover  his  real  right, 
and  although  they  make  these  combats  for  the  plaintiffs 
by  witnesses,  the  defendants  nevertheless  may  defend 
their  own  right  by  their  own  bodies,  or  by  the  bodies 
of  their  freemen ;  and  further  they  differ,  for  as  much 
as  in  appeals  none  can  combat  for  another,  but  it  is 
otherwise  in  real  actions ;  for  if  that  one  of  the  parties 
be  hurt  so  as  he  cannot  combat,  his  eldest  son  may 
wage  the  battle  for  him. 


C.I.  III..  So.  23.]    OF  MAYHEM  AND  WOUNDING.  107 

The  battle  of  two  mon  siifficeth  to  declare  the  truth, 
so  that  the  victory  is  h(jl(h'ii  for  ti'uth. 

Combats  are  made  in  many  other  cases  than  in  felo- 
nies, for  if  a  man  hath  done  any  falsity  to  me  in  deed, 
or  in  word,  whereof  he  is  appealed  or  impeached  in 
judgment,  if  he  deny  it,  it  is  lawful  for  me  to  prove  the 
action  either  by  jnry  or  by  my  body,  or  by  the  body  of 
one  witness;  and  if  it  be  of  the  false  judgment  of 
many,  then  the  ])roof  belongeth  only  against  the  pro- 
nouncer  of  the  judgment  for  the  whole  court. 

And  so  it  is  in  case  where  you  deny  your  gift,  bail- 
ment, ])ledges,  deed,  seal,  or  other  manner  of  contract, 
or  the  words  which  you  spake,  or  the  deed  which  you 
did. 

Nevertheless  you  are  to  distinguish  of  the  qualities 
of  the  causes,  for  in  apjDcals  of  felony  none  can  com- 
bat for  another,  as  is  said,  but  in  venial  causes,  al- 
though one  be  killed  in  the  battle  he  committeth  no 
murder,  but  only  those  vanipiished,  or  their  clients  for 
them  shall  tender  to  the  combatants  vanquishing,  forty 
shillings  in  name  of  cowardice,  besides  the  judgment 
upon  the  principal. 

And  in  case  where  battle  could  not  be  joined,  nor 
there  was  no  witness,  the  people  in  personal  actions  used 
to  help  themselves  by  a  miracle  of  God  in  this  manner ; 
if  the  defendant  were  a  woman,  or  of  such  a  condition 
that  she  could  not  join  battle,  and  the  plaintiflF  had  no 
witness  to  prove  his  action,  then  the  defendant  might 


168  OF  MAYHEM  AND  WOUNDING.     [Ch.  III.,  Sc.  23 

clear  her  credit  by  the  miracle  of  God,  or  leave  the 
proof  to  the  plaintiff ;  and  in  the  contrary  case  the  proof 
only  belonged  to  the  plaintiff. 

At  the  day  of  the  proof,  or  of  the  purgation,  after 
the  benediction,  and  the  malediction  of  the  priest, 
cloathed  with  the  holy  garments  of  the  mass,  and  after 
the  parties  oaths,  one  used  to  keep  the  party;  and  he 
was  to  carry  in  his  hand  a  piece  of  burning  iron  if  he 
were  a  freeman,  or  put  his  hand  or  his  foot  in  boiling 
water,  if  he  were  not  free ;  or  to  do  some  such  thing^ 
which  were  impossible  to  do  without  a  miracle  from 
God ;  and  if  he  was  not  hurt  or  blemished  the  adverse 
party  remained  as  attainted ;  but  Christianity  suffered 
not  that  they  be  by  such  wicked  arts  cleared,  if  one  may 
otherwise  avoid  it. 

Battle  is  not  to  be  joined  betwixt  all  people,  for  it 
is  not  to  be  joined  but  betwixt  equals,  nor  yet  betwixt 
all  equals,  for  not  betwixt  the  father  and  the  son,  nor 
betwixt  women,  or  infants,  or  clerks,  or  parents,  or  as- 
signs. 

Equals  are  not  a  man  and  a  woman,  nor  a  holy  man, 
and  an  excommunicate  person,  nor  a  Christian  and  an 
infidel,  nor  a  whole  man  and  a  sick,  nor  a  man  of  good 
memory  and  a  madman,  nor  a  wiseman  and  a  fool,  nor 
a  sound  man,  nor  a  man  mayhemed,  nor  a  man  and  a 
child,  nor  a  clerk  and  a  lay  person,  nor  a  man  professed 
in  religion  and  a  secular  man,  nor  a  true  man  and  a 


Ch.  III.  Sc.  24.J      JURAMENTUM  DUELLI.  160 

felon,  nor  a  man  within  the  king's  allegiance  and  out 
of  his  allegiance,  nor  the  lord  and  tenant. 

The  smallness  also  of  the  thing  in  demand  doth 
hinder  the  battle,  and  many  other  causes,  as  it  appear- 
eth  in  the  law  of  fees;  nevertheless  if  those  who  are  not 
receivable  to  join  in  battle  will  combat,  if  the  battle  be 
joined  betwixt  them,  it  is  no  wrong  to  them  who  de- 
sire it. 

And  if  any  one  offereth  himself  to  combat  with  one 
armed,  who  before  was  not  brought  by  the  parties,  and 
the  adverse  party  demand  judgment  for  the  default  of 
his  adversary ;  as  if  he  tendereth  a  witness  who  offereth 
himself  to  decide  the  difference,  and  now  he  offereth 
to  furnish  the  battle  by  another  who  ^vas  not  seen,  nor 
heard  in  court,  and  who  cannot  and  ought  not  to  try  the 
battle;  in  such  case  it  belongeth  to  try  the  exception 
as  peremptory  to  the  action,  if  the  parties  will  not 
agree  unto  it. 


Sect.  24. 

Juramentum  duelli. 

After  the  battle  joined,  adjourned  and  presented, 
and  the  parties  duly  armed,  first  the  defendant  is  to 
swear  in  this  manner.  Hear  this  you  man  who  I  hold  by 
the  hand,  Avhom  you  call  N.  by  name,  that  I  did  never 


170  THE  ORDRING  OF  COMBATANTS.     [Ch.  HI.  Sc.  25. 

kill  such  a  one  your  father,  or  said  any  such  thing  such 
a  day,  etc.      So  God  me  help,  and  the  holy  evangelist. 

Afterwards  the  plaintiff  ought  to  swear  in  this  man- 
ner. Hear  you  this  man  who  I  hold  by  the  hand,  that 
you  who  are  called  by  your  right  name  N'.  are  perjured, 
because  that  you  such  a  day,  etc.,  feloniously  killed,  etc., 
or  said  such  words,  or  did  such  a  thing,  etc. 


Sect.  25. 
The  ordring  of  the  combatants. 

After  their  oaths  be  taken,  it  behoveth  to  look  that 
the  parties  be  armed  according  to  the  ancient  usage,  of 
what  condition  soever  they  be,  knight  or  others. 

The  ancient  usage  to  be  armed  in  all  cases  of  combat 
is  this,  the  bodies  are  armed  without  seme  cotu  et  beliea, 
and  the  heads  and  the  necks,  and  the  hands  uncovered, 
the  backs,  thies,  legs  and  feet  armed  with  iron,  and  each 
to  have  a  shield  of  iron,  and  a  staff  horned  of  one  assise. 
The  plaintiff  cometh  into  the  list  from  the  East,  and  the 
defendant  from  the  West,  and  on  the  place  they  swear 
in  this  manner.  That  they  have  not  about  them  any 
charm,  nor  deceit,  nor  have  eat  nor  drank  any  thing 
whereby  the  truth  might  be  disturbed,  lessened,  and  the 
law  of  the  devil  enhansed ;  so  God  them  help  and  the 
holy  evangelists.     Then  proclamation  is  made  that  nonfe 


Ch.  III.  Sc.  2G.]     THE  ORDRING  OF  COMBATANTS.  171 

disturb  the  l)attlc,  and  oyes  is  made,  tliat  thoro  bo  no 
noise  upon  a  corporal  punishment;  and  then  they  meet 
together,  and  if  the  defendant  defend  himself  till  after 
the  sun  setting,  and  demand  judgment  of  the  default 
of  the  plaintiff,  in  that  case  judgment  sliall  be  given 
for  the  defendant. 

And  if  any  fraud  be  found  witli  one  of  tlie  parties, 
as  to  be  privily  armed,  or  there  found,  or  other  thing 
unallowable,  and  the  fraud  be  adjiulged,  that  they  be 
presently  severed,  and  judgment  is  presently  to  be 
given,  and  the  vanquished  is  to  acknowledge  his  offence 
in  the  hearing  of  the  people,  or  speak  the  horrible  word 
of  cravent  in  the  name  of  cowardice,  or  his  left  foot 
to  be  disarmed  and  uncovered  in  sign  of  the  cowardice, 
and  that  judgment  be  presently  given  against  the  prin- 
cipal. 


Sect  20. 


Of  jyersonal  trespass. 

As  to  personal  trespass,  in  the  case,  this  exception 
lieth,  Sir,  he  wrongfully  impleadcth  me  of  this  trespass, 
for  the  same  man  imi)lead<'d  such  or  such  before  such 
judges,  in  such  a  place  of  the  same  trespass,  and  made 
me  no  party  to  the  suit;  and  forasmuch  as  that  he  tiien 
recovered  by  judgment  his  full  damages  against  them 
named  in  his  plaint,  and  this  suit  is  not  brought  against 
me,  but  to  recover  damages,  and  the  law  is,  that  a  man 


172  OF  PERSONAL  TRESPASS.     [Ch.  III.  Sc.  26. 

shall  not  recover  double  damages,  I  demand  judgment 
of  his  action. 

As  to  the  alienations  and  occupations  of  franchises^ 
reals,  appendants  to  the  crown,  a  man  shall  not  voncli 
therein  to  warranty,  nor  demand  the  view,  nor  prescribe 
in  them;  for  of  snch  dignities  none  can  help  himself, 
by  a  plea  of  long  prescription,  but  snch  avowries  of  long 
continuance  are  accounted  rather  prescriptions  of 
wrong,  than  lawful  exception,  seeing  nullum  tempus  oc~ 
currit  regi,  in  his  franchises,  but  therein  the  king  is 
like  to  an  infant  who  can  lose  nothing  although  that  for 
the  personal  trespass  for  the  using  of  them,  it  behoveth 
every  one  to  excuse  the  wrong  done  to  the  king,  or  to  any 
other ;  and  that  may  be  done  two  w^ays,  because  his  an- 
cestor whose  heir  he  is,  died  seised  thereof,  and  so  that 
he  hath  enjoyed  the  same  by  title  of  succession,  as  a 
thing  annexed  to  his  land.  Or  because  he,  of  whom  he 
purchased  the  land  to  which  the  franchise  belongeth, 
was  seised,  as  if  he  were  the  possessor  thereof.  But 
this  exception  is  counter-pleadable  by  this  replication, 
Sir,  this  avow^ant  cannot  recover  nor  excuse  himself. 
For  although  that  such  a  one  his  ancestors  were  seised 
thereof,  yet  nevertheless  he  could  not  grant  away  this 
franchise,  for  the  kings  never  granted  them  so,  that  the 
grantees  could  assign  them  over,  or  make  assigns  of 
them. 


Ch.  hi.,  So.  27.J     OF  FUiiPRESTURES,  ETC.  173 

Sect.  27. 

Of  pui'prestures. 

To  purprestiires,  if  the  defendant  may  excuse  his 
wrong,  he  need  not  to  answer  thereunto  without  a  writ, 
no  more  than  to  the  action  of  franchises;  not  of  his  own 
wrong  of  hind  or  fees,  or  of  the  appurtenances  against 
any  other  than  against  the  king;  nor  for  the  king  hut 
in  his  presence.  And  if  the  wrong  he  not  originally 
the  plaintiff's,  he  may  vouch  to  warranty. 


Sect.  28. 

Of  treasure. 

To  the  alienation  of  treasure  found,  he  may  justify 
it,  if  he  be  privileged  or  authorized  so  to  do.  Or  he 
may  say,  that  he  himself  put  it  there,  or  surh  other 
whom  he  remembreth ;  whereby  no  action  accrued  to 
the  king. 


Sect.  20. 

Of  wrecks. 

To  the  action  of  wrecks  he  may  plead,  tliat  tlic  king 
hath  no  action  for  the  same,  because  the  year  is  not  yet 


174  OF  USURY.  [Ch.  III.,  Sc.  30. 

past;  and  in  the  same  manner  is  it  of  estrays,  and  of 
all  otlier  things  found.  Or  because  that  he  knoweth 
to  whom  the  goods  belong  who  is  alive.  Or  because  the 
goods  were  taken  far  in  the  sea,  and  were  not  cast  upon 
the  land  by  the  waves  of  the  sea. 


Sect.  30. 
Of  usury. 


To  usur}'  he  may  plead,  and  swear  that  he  lent  his 
corn  in  winter,  to  receive  the  same  in  September,  ac- 
cording to  the  price  as  corn  should  be  sold,  which  was 
dearer  at  that  time ;  or  he  may  swear,  he  lent  his  monies 
to  receive  better  money  for  the  same  for  a  year ;  and  that 
the  same  is  no  usury. 


Sect.  81. 

Of  hunting. 

To  an  action  of  hunting,  chasing,  or  fishing,  he  may 
plead,  that  he  hath  done  no  wrong,  for  it  is  his  right 
to  hunt  there,  or  to  chase,  or  it  is  his  common  piscary 
belonging  to  his  manor  of  such  a  place,  etc. 


Ch.  ill..  Sc.  32.]  OF  OBLIGATION.  I75 

Sect.   32. 

Of  obligation. 

As  to  obligations  (or  covenants)  he  may  plead,  that 
notwithstanding  that  obligation  be  his  deed,  neverthe- 
less it  ought  not  to  bind  him,  because  it  is  vicious,  or  by 
false  supposition  ;  or  because  the  defendant  never  saw 
any  money  or  other  thing  to  the  value ;  or  it  is  by  mix- 
ture of  offence  or  ill  faith,  as  it  is  said  of  vicious  con- 
tracts ;  or  he  may  plead  a  release  or  quit-claim ;  or  that 
it  was  contracted  that  he  might  do  waste,  or  that  he 
hath  done  nothing  to  be  adjudged  waste;  or  because  he 
hath  taken  nothing  but  reasonable  estovers  for  house- 
boot  or  hay-boot ;  or  he  may  claim  fee  in  the  tenement 
by  any  lawful  title. 


Sect.  33. 
Of  attaint. 


If  any  of  the  parties  say,  that  the  jurors  have  made 
a  false  oath,  or  any  jury ;  an  action  of  the  attaint  lieth, 
which  is  to  be  tried  by  24  jurors,  so  that  every  false 
witness  be  attainted  by  two  juries.  Tn  which  case  it 
behoveth  the  plaintiff  to  have  the  first  verdict  present 


176  THE  ORDINANCE  OF  ATTAINT.       [Ch.  III.,  Sc.  34. 

under  the  king's  seal,  or  of  the  party,  or  of  the  judge, 
and  the  parties  to  the  plea,  and  that  he  declare  in  what 
point  they  have  made  a  false  oath. 

Or  the  tenant  may  plead,  that  the  plaintiff  ought 
not  to  be  answered  to  this  attaint,  because  the  first  judg- 
ment had  not  its  full  effect ;  or  because  that  the  prin- 
cipal in  all,  or  in  part,  or  in  right  of  satisfaction  of  the 
damages  remaineth  yet  to  be  barred. 

Other  exceptions  there  are,  as  to  the  challenge  of  the 
persons  of  the  jurors,  as  appeareth  in  the  chapter  fol- 
lowing. 


Sect.  34. 

The  ordinance  of  attaint. 

Because  it  belongeth  to  the  plaintiff  to  prove  his 
action,  and  to  the  affirmer  to  prove  his  affirmation,  and 
not  to  the  denier  his  negation;  and  thnt  two  credible 
witnesses  according  to  the  word  of  God  are  sufficient 
for  witness.  The  usage  is,  that  the  affirmative  party, 
in  aid  of  the  court,  cause  the  nearest  credible  neighbours 
to  appear  in  witness,  so  that  there  be  12  men  at  the 
least  of  the  jury,  of  ancient  time  ordained  to  be  of  the 
assize,  of  which  if  two  men  are  by  false  verdict  of  them, 
and  of  the  other  jurors;  or  if  by  good  examination,  if 
all  the  jurors  be  of  one  assent  found  convenable,  it  suf- 


Ch.  III.,  Sc.  M.]     THE  ORDINANCE  OF  ATTEINT.  177 

fieeth  ;  and  if  not,  or  if  aU  the  jurors  say  generally,  that 
they  know  nothing,  or  doubt  of  the  matter,  or  if  they  say 
not  expressly  against  the  defendant,  or  if  they  speak  for 
the  defendant,  in  such  cases,  it  is  to  be  adjudged  against 
the  plaintiff,  that  he  proveth  not  sufficiently  his  saying. 
And  although  the  defendant  would  make  other  defence, 
he  shall  not  be  suffered  so  to  do. 

Against  jurors  hold  challenges,  as  against  witnesses, 
in  this  manner.  Sir,  this  man  is  not  a  covenable  juror, 
because  he  is  one  of  those  who  indicted  me  of  a  mortal 
crime,  so  as  he  did  as  much  as  in  him  lay  to  destroy 
me,  and  so  he  is  my  mortal  enemy,  or  for  other  cause  of 
■enmity. 

Or  because  that  he  is  excommunicate,  or  indicted,  or 
appealed  of  a  mortal  felony ;  or  because  he  is  not  of  the 
king's  allegiance,  or  because  he  was  at  another  time  at- 
tainted of  a  false  oath,  or  suffered  such  corporal  pun- 
ishment for  his  offences  or  otherwise  is  infamous. 

Or  because  he  is  friend,  cousin  or  ally,  or  of  kindred 
to  the  other  party;  or  because  he  is  a  villain,  or  other- 
wise in  custody;  or  because  he  is  the  servant,  the  proc- 
tor, or  tenant  of  the  adverse  party,  or  because  she  is 
a  woman,  or  because  he  was  onthiwed,  or  because  he 
was  forjured  the  realm,  or  because  he  procured  him- 
self to  be  one  of  the  jury,  or  because  he  is  within 
age,  or  because  he  is  a  lunatick,  or  a  madman;  and 
many  other  exceptions  of  challengers  there  are,  of  which 
if  any  be  denied,  the  challenge  is  to  be  tried  by  the 
12 


178  OF  OATHS.  [Ch.  III.,  Sc.35. 

jurors,  and  according  to  the  trial,  the  juror  shall  be  ad- 
mitted or  refused,  and  if  no  jury  once  appear  for  want 
of  jurors,  he  may  have  another. 


Sect.  35. 
Of  oaths. 


Oaths  differ  many  ways;  the  chief  oath  is  that  of 
fealty,  which  is  incident  to  every  homage  issuing  out 
of  land,  and  sometimes  there  is  the  oath  of  fealty,  of 
resiants  and  dwellers  in  other  manors,  and  sometimes 
remaining  in  others  service. 

The  oath  of  allegiance  was  in  these  words.  I  will 
hear  faith  to  such  a  king  of  life  and  member,  and  ter- 
rene honour,  against  all  those  that  from  this  day  for- 
ward shall,  etc.  Go  God  me  help,  and  his  holy  evan- 
gelist. 


Sect.  36. 
Homage. 


Homage  is  done  in  these  words.  I  become  your  man 
for  such  land;  so  that  the  whole  quantity  be  shewed, 
and  certainty  specified;  whereby  the  lord  well  know- 


Ch.  III.,  Sc.  37.J     FEALTY  ANNEXED  TO  HOMAGE.  179 

eth  both  how  he  may  warrant  his  tenant,  and  for  how 
much  he  bindeth  his  land  to  warranty;  and  that  the 
tenant  know  for  how  much  he  is  his  tenant. 


Sect.  37. 
Fealty  annexed  to  Jiomage. 

The  oath  of  fealty  annexed  to  Jiomage  is  in  these 
words.  I  shall  bear  fealty Ao  him  by  name  of  life  and 
member,  etc.,  for  so  mneh  as  I  shall  be  his  tenant, 
against  all,  etc.,  saving  the  oath  of  fealty  which  I  have 
made  to  snch  a  king,  etc. 

And  if  I  swear  fealty  to  another  than  to  the  king, 
then  thus,  saving  the  faith  which  I  swore  to  the  king, 
and  to  my  other  lords. 

And  if  the  homage  be  done  to  the  king,  or  to  another 
to  whom  the  tenant  hath  before  sworn  fealty,  in  these 
cases,  he  needeth  not  swear  fealty  again,  if  the  al- 
legiance in  no  case  hath  been  broken. 


Sect.  38. 
Common  oaths. 
Common  oaths  are  in  these  words,  I  will  sj^ak  truth 


180  *        OF  FINAL  ACCORDS.         [Ch.  III.,  Sc.  39. 

in  what  you  ask  of  me  in  such  a  case ;  So  God  me  help, 
etc. 

The  oaths  in  assises  are  in  these  words. 

I  will  speak  the  truth  of  the  land  of  which  I  have 
liad  the  view  by  authority  of  this  assise,  or  of  the  land 
of  which  this  action  of  redisseisin  is  arraigned,  or  of 
the  pasture,  or  fee,  or  of  the  nuisance,  or  of  the  wall,  or 
of  the  ditch,  or  of  the  pool,  or  of  the  water,  or  of  the 
church,  or  of  the  rent,  or  of  the  service,  and  nothing 
shall  hinder  me  that  I  shall  not  speak  the  truth,  etc. 

Of  life  and  member  and  terrene  honour,  he  will  do 
so  much,  that  he  will  never  assent  that  the  king  or  his 
other  lord  have  damage  of  his  life,  or  any  of  his  mem- 
bers, nor  will  assent  that  his  honour  shall  be  overthroA^m 
in  power  nor  fame. 


Sect.  39. 
Of  final  accords. 

ISTo  law  forbiddeth  pleas,  nor  accords,  whereof  it  is 
lawful  for  every  one  to  agree  with  his  adversary,  and 
to  release  and  quit-claim  his  right,  and  his  action. 

l^evertheless  after  one  hath  once  affirmed  and 
brought  his  personal  action  whereby  scandal  ariseth, 
none  can  agree  it  without  the  leave  of  the  judge,  so  as 
he  may  withdraw  it.     For  every  plaintiff  in   actions 


Ch.  IJl.,  Sc.  39.]         OF  FINAL  ACCORDS.  181 

of  scandal,  who  attainteth  not  his  adversary  according 
to  that  as  lie  hath  brought,  his  plaint  is  adjudged  scan- 
dalous, as  his  adversary  should  be  if  he  were  attainted. 
Nevertheless,  in  favour  to  save  a  man  from  death,  who 
is  not  attainted  of  mortal  offences,  it  is  suffered  that 
the  adverse  parties  do  agree ;  after  battle  waged  one 
of  the  parties  nevertheless  remaineth  infamous. 

None  can  accord  or  agree,  who  is  not  of  the  age  of 
21  years,  nor  any  who  is  in  custody,  nor  any  by  at- 
torney. 

In  custody  are  villains,  married  women,  men  pro- 
fessed in  religion,  infants  within  the  age  of  14  years, 
heirs  ideots,  heirs  deaf  and  dumb,  heirs  diseased,  and 
those  Mdio  are  in  prison,  and  under  bail,  and  women  who 
are  in  the  custody  of  the  lords,  who  have  the  marriage 
of  them. 


THE  CONTENTS  OF  THE  FOURTH  CHAPTER. 


Section  Page 

Of  judgment i  183 

Ordinance  of  judgment ii  183 

Of  jurisdiction iii  i86 

Of  defaults  punishable iv  189 

Of  defaults v  190 

Of  personal  actions vi  191 

Of  defaults  in  real  actions vii  182 

Of  actions  mixt viii  192 

Of  pledges  and  mainpernors ix  193 

Of  defaults  after  summons x  194 

Of  champions xi  196 

Of  pains xii  199 

Of  infamies xiii  201 

Of  majesty xiv  202 

Of  burning xv  203 

Of  murder xvi  204 

Of  pains  in  divers  manners xvii  213 

Of  false  judges xviii  214 

Of  perjury xix  216 

Of  the  offices  of  justices  in  Eyre xx  217 

Of  the  articles  in  Eyre xxi  218 

Of  franchises xxii  221 

Of  satisfaction  of  debts xxiii  222 

Cases  of  disseisin xxiv  222 

Of  amercements xxv  225 

Of  amercements  taxable xxvi  226 

Of  the  office  of  justices  in  Eyre xxvii  228 


182 


CHAPTER   IV. 

Sect.  I. 

Of  Judgment. 

The  flower,  and  necessity  of  law  doth  depend  in 
righteous  indament,  without  which  the  law  can  have 
no  effect,  nor  any  due  end.  And  therefore  it  is  fit  to 
speak  of  judgments,  which  are  not  in  all  points  here 
according  to  the  rigour  in  tlie  old  testament,  and  the 
usages  used  by  Moses  and  the  prophets,  before  the  in- 
carnation of  Christ ;  but  they  are  mitigated  to  the  tem- 
per of  mercy,  of  the  truth,  and  of  the  justice  which 
Christ  himself  used  upon  the  earth,  and  commanded  to 
be  used  in  the  new  testament,  and  which  the  apostles 
and  their  successors  have  used  since  the  incarnation  of 
Christ,  and  according  to  the  judgments  of  the  ancient 
usages  in  pleas,  touching  the  laws  of  this  realm. 


Sect.  2. 

The  ordinance  of  judgment. 

Judgment  cometh  from  jurisdiction,  which   is  the 

183 


184  THE  ORDINANCE  OF  JUDGMENT,    [Ch.  IV.,  Sc.  2. 

greatest  dignity  which  belongeth  to  the  king.  And 
there  are  two  kinds  of  jurisdiction,  ordinary  and  as- 
signed ;  every  one  hath  ordinary  jurisdiction,  if  oifence 
take  it  not  away  from  him ;  for  every  one  may  judge 
his  own  according  to  the  right  rules  of  law.  But  this 
jurisdiction  is  now  restrained  by  the  power  of  kings,  in 
as  much  as  none  hath  power  to  hold  plea  of  trespass  or 
of  debt  which  passeth  40  s.  but  the  king.  Nor  any 
hath  power  of  conusance  of  fees  without  a  writ.  ]^ev- 
ertheless,  it  is  lawful  for  every  one  to  f.  oust  the  mortal 
offender,  for  committing  of  their  offences,  by  good  wit- 
nesses, by  warrant  of  ordinary  jurisdiction,  whether 
the  offenders  be  clerks  or  lay  people,  of  age,  or  within 
age,  and  all  other  of  what  condition  soever  they  be ;  and 
in  those  cases  are  those  offences  called  notorious  of- 
fences. 

There  are  two  kinds  of  notorious,  notorious  in  fait, 
and  notorious  in  right. 

Notorious  in  fait  is,  where  no  contradiction  lieth,  nor 
no  oaths  need  to  justify  them,  by  reason  of  the  witness 
of  the  people. 

Notorious  of  right,  is  where  the  offenders  are  at- 
tainted of  their  offences  by  themselves,  or  by  the  oaths 
of  witnesses,  or  otherwise  in  judgment.  This  jurisdic- 
tion assigned  is  that  which  the  king  assigns  by  his  com- 
missions of  his  writs ;  for  without  a  writ  he  cannot  by 
law  grant  any  jurisdiction,  if  not  in  the  presence,  and 
with  the  assent  of  the  parties. 


Ch.  IV.,  Sc.  2.]    THE  ORDINANCE  OF  JUDGMENT.  185 

j^one  can  give  jurisdiction  but  the  king,  and  the 
reason  is,  because  he  is  not  sufficient  to  bear  without 
help  the  charge  which  belongeth  to  him  to  punish  the 
trespasses,  and  to  assoil  the  offenders  which  lie  hath 
to  govern. 

And  so  our  ancestors  appointed  a  seal  and  a  chan- 
cellor to  help  the  same,  to  give  writs  remedial  to  all 
plaintiffs  without  delay. 

That  writs  used  to  be  of  this  assise,  they  were  with- 
out rasure,  without  interlining,  without  blots,  without 
usual  transposition,  and  without  every  fault  in  the 
parchment  and  letters,  and  written  in  English  with  a 
known  hand,  by  a  clerk  of  the  chancery,  and  used  to 
contain  the  name  of  the  parties,  and  the  substance  of 
the  plaint,  and  the  name  of  the  judge,  and  of  the  king, 
or  other  teste  of  the  writ,  which  sometimes  were  di- 
rected to  the  lord  of  the  fee,  sometimes  to  the  bailiffs, 
sometimes  to  the  justices  in  Eyre,  sometimes  to  certain 
persons  named,  and  sometimes  to  persons  not  named,  as 
to  bailiffs,  justices,  and  sheriffs. 

And  every  plaintiff  used  to  have  a  commission  to 
his  judge,  by  the  writ  patent  aforesaid. 

And  now  may  justices,  sheriffs,  and  their  clerks  forge 
writs,  thorough  draw  loose,  amend  or  impair  them, 
without  any  prosecuting  or  punishment,  because  the 
writs  are  made  close  through  abuse  of  the  law.  By  that 
seal  only  is  jurisdiction  grantable  to  all  plaintiffs  with- 
out difficulty,  and  the  chancellor  is  chargeable  by  his 


186  JURISDICTION  IS  A  POWER    [Ch.  IV.,  Sc.  3. 

oath  of  allegiance  to  make  such  writs,  and  that  he  do 
not  delay  or  deny  justice,  nor  a  remedial  writ  to  any^ 
one. 


Sect.  3. 

Jurisdiction  is  a  power  to  declare  the  law. 

That  power  God  gave  to  Moses^  and  that  power  they 
have  now,  who  hold  his  place  upon  earth,  as  the  pope, 
and  the  emperor,  and  under  them  the  king  now  hath 
this  power  in  his  realm. 

The  king,  by  reason  of  his  dignity,  maketh  his  jus- 
tices in  divers  degrees,  and  appointeth  to  them  juris- 
diction, and  that  in  divers  manners,  sometimes  certain, 
especially,  as  in  commissions  of  less  assises ;  sometimes 
in  certain  generally,  as  it  is  of  commissions  of  justices 
in  Eyre,  and  of  the  chief  justices  of  pleas  before  the 
king,  and  of  justices  of  the  bench,  to  whom  jurisdiction 
is  given  to  hear  and  determine  fines  not  determined, 
the  grand  assizes,  the  transactions  of  pleas,  and  the 
rights  of  the  king  and  of  the  queen,  and  of  his  fees, 
and  the  words  of  the  king's  writs,  whether  they  be 
named  generally  or  specially. 

Besides,  the  barons  of  the  Exchequer  have  jurisdic- 
tion over  receivers  and  the  king's  bailiffs,  and  of  aliena- 
tions of  lands  and  rights  belonging  to  the  king,  and  to 
the    right    of   his    crown.      Sometimes    jurisdiction    is 


Ch.  IV.,  Sc.  3. J         TO  DECLARE  THE  LAW.  187 

given  to  sheriffs  for  the  defaults  of  others,  is  appeareth 
in  the  writ  of  right ;  where  it  is  said,  that  if  he  do  not 
right,  that  the  sheriff  of  the  county  shall  do  it. 

Sometimes  to  those  who  have  the  return  of  writs  re- 
turnable. 

Sometimes  jurisdiction  is  given  to  the  justices  of  the 
bench  by  removing  of  the  pleas  out  of  the  counties,  be- 
fore the  said  justices,  and  sometimes  to  record  the  pleas 
holden  in  mean  courts  without  writs,  before  the  same 
justices  of  the  bench :  but  as  those  records  ought  not 
avail  the  plaintiffs,  if  not  after  judgment  given,  that 
the  pleas  be  returnable  until  after  their  judgments. 
And  as  the  pleas  moved  upon  the  writs  are  to  be  re- 
manded into  the  lords  courts,  where  the  lords  have  not 
failed  to  do  right.  In  like  manner  are  the  pleas  re- 
moved by  pone  returnable  in  the  counties,  in  case  where 
the  parties  never  appeared  in  court  for  to  plead. 

To  the  office  of  chief  justices  it  belongeth  to  redress 
and  punish  the  tortious  judgments,  and  the  wrongs  and 
the  errors  of  other  justices,  and  by  writ  to  cause  to 
come  before  the  king,  the  proceedings  and  the  records, 
with  the  original  writs,  and  before  such  justices  are  all 
letters  pleadal)le  returnable,  and  to  be  ended,  wherein 
mention  is  made  before  the  king  himself;  and  the  writs 
not  pleadable,  nor  returnable  before  the  king,  are  re- 
turnable  into  chancery. 

And  also  it  belongeth  to  their  office,  to  hear  and  de- 
termine  all  plaints  made  of  personal  wrongs,   within 


1S3  JURISDICTION  IS  A  POWER,  ETC.     [Ch.  IV..  Sc.  3. 

twelve  miles  of  the  king's  house,  and  to  deliver  gaols 
and  the  prisoners  from  thence,  who  are  to  be  delivered, 
and  to  determine  whatsoever  is  determinable  by  justices 
in  Eyre  more  or  less,  according  to  the  nature  of  their 
commission. 

On  the  other  side  there  is  a  kind  of  jurisdiction, 
which  is  called  arbitrary,  which  is  not  ordinary,  nor 
assigned,  as  if  such  which  is  by  the  assent  of  the  parties. 

Of  jurisdiction  cometh  judgment,  which  hath  many 
significations:  in  the  one,  judg-ment  is  as  much  as  to 
say  absolution  from  offence ;  in  another  sense,  as  sen- 
tence, which  sometimes  soundeth  well,  as  of  discharge 
or  acquittance  from  punishment,  and  sometimes  ill,  as 
excomengement :  and  in  another  sense,  as  the  end  of 
the  plea,  and  the  end  of  jurisdiction. 

Jurisdiction  assigned  mav  be  for  a  time,  or  for  ever. 
For  a  time,  as  in  some  exception  dilatory,  where  the 
action  reviveth;  for  ever,  as  by  a  definitive  sentence 
upon  the  action. 

Judgments  varv  according  to  the  difference  of  of- 
fences.  In  like  offences  nevertheless  there  are  the  like 
judgments.  For  the  mortal  offences  according  to  the 
warrant  of  the  old  testament,  were  assoiled  by  death ; 
for  in  the  old  testament  it  is  found  that  God  com- 
manded Moses,  that  he  should  not  suffer  felons  to  live. 
"But  before  more  is  to  be  spoken  of  punishments,  it  is 
to  see  by  what  introduction  offenders  and  contumacious 
persons  are  compellable  to  appear  in  court,  and  by  what 
judgments. 


Ch.  IV.,Sc.  4.j         DEFAULTS  PUNISHABLE.  189 

Sect.  4. 

Defaults  punishahle. 

Defaults  are  punishable  many  ways.  In  appeals 
of  felony  they  are  puni.shable  by  outlawry;  which  judg- 
ment is  such,  that  after  that  any  one  hath  been  solemnly 
called,  and  demanded  to  ajjpear  to  the  king's  ])eace  at 
three  several  counties  for  felony,  and  he  eonieth  not, 
that  from  thence  forward  he  is  holden  for  a  wolf,  and 
is  called  wolf's-head,  because  the  wolf  is  a  beast  hated 
of  all  people;  and  from  thence  forward  it  is  lawful  for 
any  one  to  kill  bini;  as  it  is  a  wolf,  whereof  the  cus- 
tom was,  to  bring  the  heads  to  the  chief  place  of  the 
county,  or  of  the  franchise,  and  according  to  law,  for 
every  head  of  an  outlaw,  to  have  half  a  mark,  and  such 
fugitives,  outlaws,  forfeited  for  their  contempts,  the 
realm,  country,  friends,  and  whatsoever  belonged  to  the 
peace,  and  all  manner  of  rights  which  they  ever  had,  or 
could  have  by  any  title,  not  only  as  to  themselves,  but 
to  their  heirs  for  ever.  Also,  all  confederations  of 
homages,  of  alliance,  of  affinity,  of  service,  of  oaths,  and 
all  manner  of  obligations  betwixt  the  outlaws  and  others 
were  broken,  severed,  and  defeated  by  such  judginont. 
And  all  manner  of  grants,  rents  and  contracts,  and  all 
manner  of  actions  which  they  had  against  any  manner 


190  DEFAULTS.  [Ch.  IV.,  Sc.  5. 

of  persons,  were  void,  not  only  from  the  time  of  judg- 
ment, but  from  the  time  of  the  felony,  for  which  such 
judgment  was  given;  and  such  persons  could  never 
again  resort  to  answer  the  felony,  if  the  process  of  out- 
lawry were  not  faulty,  if  not  by  the  great  mercy  and 
favour  of  the  king ;  women  were  not  plevisibles,  and  put 
in  dozeins  as  men,  but  were  waves. 


Sect.   5. 
Defaults. 


In  personal  actions,  venials,  defaults  used  to  be  pun- 
ished after  this  manner.  The  defendants  were  dis- 
trained to  the  value  of  the  demand,  and  afterwards  they 
were  to  hear  their  judgments  for  their  defaults,  and  for 
default  after  default,  judgment  was  given  for  the  plain- 
tiff. This  usage  was  changed  in  the  time  of  king  Hen. 
T.  that  no  freeman  was  not  to  be  distrained  by  his  body 
for  an  action  personal,  venial,  so  long  as  he  had  lands; 
in  which  case  the  judgment  by  default  was  of  force,  till 
the  time  of  king  Hen.  III.  that  the  plaintiff  should  rer 
cover  his  seisure  of  the  land,  to  hold  the  same  in  de- 
mesne after  default,  until  due  satisfaction  was  made, 
so  as  the  defaults  were  more  hurtful  to  persons  in  con- 
tempt, then  profitable. 

Some  actions  are  personals,  and  not  mixt  in  the  in- 


Ch.  IV.,  Sc.  6.J       OF  PERSONAL  ACTION.  191 

troduction,  as  of  neifty,  of  account,  of  leading  away 
distresses;  and  some  actions  there  are,  that  although 
they  savour  of  the  personalty  and  realty,  yet  they  hold 
not  the  rules  of  those  actions;  as  of  recognitions  of  as- 
sises, in  which  if  the  tenants  make  defaults,  for  that 
there  is  no  distress  nor  seisure  of  the  land,  or  other 
thing  in  the  king's  hands,  but  the  recognitions  are  to 
be  taken  ex  officio,  and  the  judgments  are  to  be  pro- 
nounced according  to  the  verdict  of  the  jurors,  in  re- 
spect of  such  defaults. 


Sect.  6. 

Of  personal  action. 

In  personal  actions,  venials,  where  the  defendants 
are  not  freeholders,  the  defendants  used  to  be  punished 
after  this  manner.  First,  process  was  to  be  awarded 
to  arrest  their  bodies,  and  those  who  were  not  found, 
were  put  in  exigent  in  what  court  soever  the  plea  was, 
and  were  at  three  courts  solemnly  demanded  and  pro- 
claimed ;  and  if  they  appeared  not  at  the  fourth  court, 
then  were  they  banished  the  lord's  jurisdiction,  or  the 
bailiffs  of  the  court  for  a  time,  or  for  ever,  according  to 
the  quantity  of  the  trespasses. 


192  DEFAULT  IN  REAL  ACTIONS.     [Ch.  IV. ,  Sc.  7. 

Sect.   7. 

Defaults  in  real  actions. 

The  defaults  in  real  actions  are  punishable  in  this 
manner.  At  the  first  default  the  plaintiff  is  there 
seised  to  the  value  of  the  demand  into  the  hand  of  the 
lord  of  the  court,  and  the  tenants  are  summcnable  to 
hear  their  judgments  of  defaults;  or  after  appearance, 
the  seisure  is  to  be  adjudged  to  the  plaintiffs,  to  hold 
in  the  name  of  a  distress,  until  by  lawful  judgment  he 
be  ousted  thereof.  And  if  any  one  appear  in  court, 
first  he  is  to  plenise  the  thing  in  demand,  and  presently 
to  answer  the  default ;  in  Avhich  case  he  may  deny  the 
summons,  because  he  was  never  summoned,  or  not  rea- 
sonably summoned,  and  thereof  he  may  wage  his  law 
against  the  testimony  of  the  summoners,  although  they 
te  present,  and  if  he  wage  his  law,  he  is  presently  to 
plead  to  the  action,  or  to  the  plaintiff. 


Sect.  8. 
Of  actions  mixt. 

t 

The  defaults  of  mixt  actions  are  punishable  in  this 
manner,  the  defendants   are  distrainable  by  all  their 


Ch.  IV.,  Sc.  9. J     OF  PLEDGE  AND  MAINPERNOR.  I93 

moveable  goods  and  lands,  saving  that  they  are  not  put 
out  of  that  possession  from  court  to  court,  till  they  ap- 
pear and  answer,  and  the  issues  come  to  the  profits 
of  the  lords  of  the  courts. 


Sect.  9. 
Of  pledge  and  main'pernor. 

Pledges  and  mainpernors  are  of  one  signification, 
notwithstanding  that  they  differ  in  names ;  l)nt  pledges 
are  those,  who  bail  other  things  than  the  body  of  men, 
as  in  real  actions  and  mixt,  mainpernors  are  in  per- 
sonal actions,  only  those  who  bail  the  body  of  a  man ; 
safe  pledges  are  those  who  are  sufiicient  to  answer  the 
demand,  or  the  value,  and  are  true  men,  and  free- 
holders to  whom  the  plaintiff  is,  and  in  wdiose  court  the 
plea  is  brought ;  and  if  any  one  bring  the  body  or  his 
fees  by  default,  he  is  sufiicient  punished,  though  he  bo 
not  amerced,  but  then  the  offender  is  first  amerceable, 
when  he  is  brought  to  judgment,  and  cannot  excuse  his 
wrong  or  save  his  default. 

And  as  none  who  cometh  before  summons  is 
amerceable  so  no  plaintiff  is  amerceable,  or  his 
pledges,  de  prosequendo  for  nonsuit,  where  the  ten- 
ant appeareth  according  to  the  warrant  of  the  sum- 
mons; or  otherwise  niaketh  satisfaction  for  the  same. 

13 


194  DEFAULTS  AFTER  SUMMONS.    [Ch.  IV.,  Sc.  10. 

As  in  case  where  the  king  commands  the  sheriff, 
that  he  command  such  a  one  to  appear  or  to  do ;  and  if 
he  do  not,  and  the  plaintiff  put  in  sureties  to  prosecute 
his  suit,  then  that  he  summon  or  attach  the  defendant, 
etc.  In  which  case,  if  the  sheriff  had  not  warned  the 
tenant  to  appear  to  do  according  to  the  points  of  the 
warrant,  if  he  take  surety  of  the  plaintiff  to  prosecute, 
he  doth  him  wrong:  but  the  plaintiff's  and  their  pledges 
are  to  be  amerced,  when  the  defendants  offer  themselves 
in  judgment  against  them;  and  they  make  defaults  by 
nonsuit. 

And  also  those  sheriffs  do  wrong  who  forbear  to  exe- 
cute the  king's  commands,  in  as  much  as  the  plaintiffs 
have  found  sureties  to  prosecute  their  plaints,  when  no 
mention  is  made  in  the  writs  to  put  in  sureties. 


Sect.   10.  ' 

Defaults  after  summons. 

As  there  is  a  default  of  persons,  in  the  like  manner 
there  are  of  things ;  as  of  services  issuing  out  of  lands 
where  the  lands  are  in  service ;  and  where  not :  if  rent, 
suit,  or  other  service  be  behind  to  the  lord  of  the  fee, 
the  tenant  is  not  distrainable  for  the  same  by  his  movea- 
ble goods,  but  it  behoveth  to  summon  the  tenants  to  save 
their  defaults,   or  to  make  satisfaction,   or  to  answer 


Ch.  IV.,Sc.  10.]     DEFAULTS  AFTER  SUMMONS.  195 

wherefore  those  services  due  out  of  their  possessions  are 
behind  to  the  lords ;  and  if  they  appear  not  at  the  sum- 
mons by  the  award  of  the  suitors,  their  lands  are  to  be 
seised  into  the  lord's  hands,  till  they  justify  themselves 
by  pledges.  And  if  they  be  again  simimoned,  to  hear 
the  judgments  for  their  defaults;  although  they  come 
not  at  the  second  summons,  they  are  not  to  be  amerced, 
in  as  much  as  they  came,  they  may  render  the  land,  or 
alledge  a  privilege,  or  say  something  why  they  ought 
not  to  obey  the  summons. 

And  if  the  lord  have  not  a  proper  court,  nor  suitors, 
or  hath  not  power  to  do  justice  to  his  tenants  in  man- 
ner as  aforesaid  ;  then  the  same  may  be  done  in  the 
county  or  hundred,  or  else  in  the  king's  courts ;  or  at 
first  by  a  writ  of  customs  and  services,  and  other  reme- 
dial writs.  And  if  any  one  hath  not  any  thing  to 
acquit  himself,  the  lord  is  not  to  lose  his  right  although 
he  be  delayed  thereof,  but  the  lord  may  seise  his  land  as 
before  is  said,  and  the  tenant  is  to  recover  his  damages 
where  he  can,  and  it  shall  be  accounted  his  folly  to 
enter  or  remain  in  another  fee,  without  the  consent  of 
the  lord. 

And  if  any  one  oust  him  of  his  land,  and  of  his  tene- 
ment, and  enforceth  another  person  to  hold  of  him,  and 
maketh  himself  mesne  betwixt  the  lord  and  the  tenant, 
in  prejudice  of  the  lord,  in  such  a  case  the  law  is  used 
to  hold  the  course  after  said. 


196  OF  CHAMPION.  [Ch.  IV.,  So.  11. 


Sect.  11. 
Of  champion. 

If  any  one  do  or  say  to  his  lord  of  whom  he  holdeth 
any  thing,  which  turneth  to  the  hurt  of  his  body,  or  to 
his  disinherison  or  to  his  great  dishonour ;  first  by  the 
award  of  his  court,  or  of  some  other  such  a  one  is  sum- 
monable,  if  he  be  his  tenant,  and  afterwards  if  lie  make 
default  he  is  distrainable  by  his  land  by  the  lord,  till 
he  appear ;  and  if  he  appear,  and  cannot  discharge 
himself,  by  his  wager  of  law,  by  12  men  more  or  less, 
according  to  the  award  of  the  court  he  is  to  be  disin- 
herited of  the  tenancy,  which  he  holdeth  of  the  lord, 
in  such  a  manner  by  the  judgment  of  the  suitors,  and 
so  it  behoveth  that  the  tenants  leave  their  lands,  and 
that  they  come  to  the  lords. 

And  if  any  one  denieth  his  service  which  he  ought 
to  do,  it  may  be  said  by  the  lords,  that  wrongfully  he 
denieth  either  part  or  the  whole,  and  that  to  his  wrong, 
and  so  further  count  of  seisin  by  his  own  hand,  and  that 
such  is  his  right,  etc.,  as  after  shall  be  said. 

And  the  tenant  may  chuse  to  try  his  right  by  his  own 
body,    or   by   another,    or   join    issue   upon    the   grand  - 

assise ;  and  pray  conusance  whether  he  hath  the  better  ■ 

right  to  hold  such  land  specified,  discharged  of  such  " 


I 


Ch.  IV.,Sc.  11.]       •      OF  CHAMPION.  197 

service,  as  he  holdeth,  or  the  said  .1.  to  liave  the  same 
land  in  demesne  as  lie  claimeth. 

And  if  the  defendant  will  try  his  right  by  the  body 
of  another,  then  ye  are  to  distinguish.  For  if  the 
action  be  personal,  the  suit  need  not  be  present;  and  if 
the  action  be  real  and  the  tenant  hath  his  champion 
present ;  then  may  the  plaintiff  offer  his  champion 
against  the  champion  of  the  defendant,  or  he  shall  lose 
his  covenant  or  his  writ.  And  if  the  defendant  have  no 
cliani])ion,  then  are  the  parties  adjonrnable  if  they 
have  joined  battle,  that  they  have  their  champions  ready 
at  the  next  court,  as  appeareth  in  the  case  of  Saxeling 
to  whom  Hustan  was  bound  in  a  Ijond  of  10  I.  by  a  writ- 
ing obligatory  made  at  Rome,  which  the  said  Hunstan 
denied,  that  it  was  not  his  deed,  to  which  Saxeling  by 
way  of  replication  answered,  that  he  wrongfully  de- 
nied the  same,  and  that  wrongfully ;  for  that  he  sealed 
it  with  his  seal,  or  with  the  seal  of  another  which  he 
borrowed  of  him,  such  a  day,  such  a  year,  and  at  such 
a  place,  and  that  if  he  would  deny  it  he  was  ready  to 

prove  it  by  the  body  of  .4.  who  saw  it,  or  by  0.  and  C. 
who  saw  the  same,  and  if  any  hurt  come  to  them,  he 

was  ready   to   prove  the  same  by   another,    who  could 

prove  the  same.     And  so  it  appeareth,  that  it  is  not 

needful  to  have  present  suit  in  such  personal  actions 

the  first  day,  but  the  parties  may  be  adjourned  as  it 

is  said. 

And  if  any  one  who  cannot  be  a  fit  witness,  or  who 


198  OF  CHAMPION.  [Ch.  IV.,  Sc.  11. 

is  a  champion,  be  offered  by  one  of  the  parties  to  com- 
bat, who  was  not  named  before  to  make  the  battle,  and 
the  adverse  party  there  challenge  him,  and  demand 
judgment  of  the  default,  in  such  case  the  judgment  is 
to  be  given  against  the  profferer. 

And  if  any  ill  happen  to  any  of  their  champions 
whereby  they  cannot  combat  according  to  their  proffer, 
none  is  receivable  to  try  the  battle  for  him,  but  only 
his  eldest  son  lawfully  begotten,  as  by  some  is  said. 

And  if  the  tenant's  champion  be  vanquished,  the 
tenant  thereby  loseth  all  homage  and  all  alliance,  and 
all  oaths  of  fealty,  and  all  homage  betwixt  him  and  the 
lord,  and  the  lord  is  to  enter  therein,  and  to  hold  the 
same  in  demesne  as  if  he  had  recovered  by  the  grand 
assise ;  and  if  the  champion  of  the  lord  be  vanquished, 
that  then  the  judgment  be,  that  the  tenant  hold  his  land 
for  ever  quit  of  the  service  in  the  demand. 

And  if  the  king  doth  any  wrong  to  any  of  his  free- 
men, who  hold  of  him  in  chief,  the  same  course  is  to 
be  holden,  the  earls  of  parliaments  and  the  commons 
have  jurisdiction  to  hear  such  causes  and  determine 
them,  because  the  king  cannot  by  himself,  nor  by  his 
justices,  determine  the  causes  nor  pronounce  their  judg- 
ment, where  the  king  is  a  party. 

And  as  the  lords  may  challenge  the  tenants  of  wrong, 
or  injuries  done  to  them  against  the  articles  of  their 
fealty,  in  the  like  manner  are  the  lords  challengeable 
of  wrongs  and  injuries  done  by  them  to  their  tenants 


Ch.  IV..  So.  r3.J  OF  PUNISHMENTS.  iy9 

And  if  the  lords  do  not  appear  to  answer  their  tenants; 
tluMi  are  the  tenants  to  be  adjudged  that  they  do  no 
service  for  their  lands,  till  the  lords  have  answered. 


Sect.   12. 

Of  'punishments. 

Punishment  is  a  satisfaction  for  a  trespass  or  an 
offence ;  there  are  two  kinds  of  punishments.  Volun- 
tary and  violent. 

Voluntary  is  that  which  bindeth  the  doer  of  his  own 
accord,  as  it  is  in  his  compromises,  to  compel  the  people 
to  keep  their  bargains,  but  with  such  punishments  the 
law  medleth  not  with :  of  violent  punishment  where- 
with the  law  medleth,  there  are  two  kinds,  corporal  and 
pecuniary. 

Of  corporal  some  are  mortal,  and  some  venial ;  of 
mortal,  some  are  by  beheading,  some  by  drawing,  some 
by  hanging,  some  by  burning  alive,  some  by  falling 
from  dangerous  places,  and  otherwise  according  to  an- 
cient privileges  and  usages. 

The  offences  which  require  punishment  of  death,  are 
the  mortal  offences. 

Of  venial  punishments,  some  are  by  loss  of  member; 
as  the  felony  of  mayhem  in  case  of  ^VTong ;  of  member ; 


200  OF  PUNISHMENTS.  [Ch.  IV.,  Sc.  12, 

some  by  the  loss  of  hand,  as  it  is  of  false  notaries,  and 
of  cutters  of  purses  with  the  larceny  of  less  than  12  d. 
and  more  than  6  d.  which  king  Rich,  changed,  some 
by  cutting  out  of  tongues,  as  it  used  to  be  of  false  wit- 
nesses, some  by  beating,  some  by  imprisonment,  some 
by  loss  of  all  their  moveable  goods,  and  not  moveable, 
as  of  false  judges,  and  it  is  of  usurers  attainted  of 
usury  after  their  decease,  but  not  if  they  be  attainted 
thereof  in  their  life,  for  then  they  lose  but  only  their 
moveables,  because  by  penance  and  repentance,  they 
may  amend  and  have  heirs.  Some  by  exile  and  abju- 
ration of  their  Christianity,  or  of  the  realm,  of  the 
town,  of  the  manor  or  the  land  and  their  friends,  as  it 
is  of  those  who  are  attainted  in  personal  actions  venials, 
who  are  not  able  to  make  satisfaction,  some  by  banish- 
ment, as  it  in  contempts  in  personal  actions  venials, 
some  by  other  corporal  pains,  as  it  appeareth  after  in 

its  place. 

And  although  one  offend  in  deed,  or  in  word,  in  all 
judgments  upon  personal  actions,  7  things  are  to  be 
weighed  in  the  balance  of  conscience,  that  is  to  say, 
1  The  cause.  2  The  person.  3  The  place.  4  The 
time.      5   The  quality.      G   The  quantity.      7   The  end. 

1  The  cause  whether  it  be  mortal  or  venial,  2  The 
person,  the  plaintiff  and  defendant,  3  The  place, 
whether  in  sanctuary,  or  not,  4  The  time,  whether  in 
dav  or  in  the  night,  5  The  quality  of  the  trespass,  6 
The  quantity  appeareth  in  itself,  7  The  end,  whether 


Ch.  IV.,  Sc.  la.J     OF  INFAMOUS  PERSONS.  201 

the  taking  were  in  manner  of  distress  by  a  justifiable 
importment,  or  in  manner  of  larceny,  by  alienation  un- 
justifiable. 


Sect.   13. 

Of  infamous  persons. 

All  those  who  are  rightful  attainted  of  an  offence, 
whereupon  corporal  punishment  followeth,  are  infa- 
mous. 

Infamous  are  all  those  who  offend  mortally  or  feloni- 
ously, all  those  who  are  perjured  in  giving  false  wit- 
ness, all  false  judges,  all  false  usurers,  and  all  those 
who  are  attainted  of  personal  trespasses,  to  whom  open 
penance  is  joined  by  judgment  of  law. 

Those  who  imprison  a  freeman  against  his  will,  or 
blemish  the  credit  of  his  franchise  bv  extortion,  or  by 
any  purchase ;  those  who  also  bring  attaints  and  cannot 
prove  the  perjury,  whereby  honest  jurors  are  slandered. 

And  those  who  indict  or  apjieal  a  man  who  is  inno- 
cent of  crime,  blemishing  his  credit,  or  wrongful  slan- 
dering him  of  any  personal  wrong ;  for  those  three  pleas 
are  hold  odious,  the  one  because  the  holy  scripture  for- 
biddeth  vengeance  to  men,  but  the  punishment  of  of- 
fenders belongeth  to  God ;  and  God  commandeth  to 
shew  mercy,  and  that  is  against  the  appeal  of  felony ; 
the  other  of  attainder  of  perjury  is  odious  for  the  cor- 
poral  punishment  which  followeth  thereupon ;   the  3d 


202  t)F  MAJESTY.  [Ch.  IV.,  Sc.  14. 

because  it  is  against  the  law  of  nature;  which  will  not 
that  any  man  should  be  in  slavery  to  another  creature. 
Again  those  who  combat  deadly  for  reward,  who  are 
vanquished  in  the  combat  by  judgment  betwixt  two 
men,  those  who  withdraw  themselves  from  battles  when 
they  have  undertaken  the  combat,  if  therein  they  make 
default;  those  who  keep  brothel-houses  of  loose  women, 
those  who  take  again  their  wives  after  their  sin  of  adul- 
tery is  known  to  them,  or  keep  those  suspected  of  that 
sin ;  those  who  are  adulterers,  those  who  marry  other 
wives  leaving  the  first,  those  who  are  elopers  or  ravish- 
ers,  those  who  take  rewards  to  suifer,  those  who  cast  out 
their  children  to  death,  those  who  ravish  their  cousin 
or  assines,  those  who  marry  a  wife  within  the  year 
after  the  death  of  their  former  wives,  those  who  suffer 
themselves  to  be  married  within  the  year  after  the 
deaths  of  their  first  husbands,  those  and  they  who  con- 
tract marriages  elsewhere,  leaving  their  wives  or  hus- 
bands, and  those  who  too  soon  purify  themselves,  and 
many  other  infamous  persons  are  to  be  punished  by 
corporal  punishments  in  divers  manners. 


Sect.   14. 

Of  majesty. 

The  punishment  of  the  mortal  sin  of  majesty  against 
the  king  of  heaven,  sodomy,  is  by  burying  the  offenders 


Ch.  IV.,  Sc.  15.]  OF  BURNING.  203 

alive  deep  in  the  earth,  so  that  the  remembrance  of  them 
be  forgotten  for  the  great  abomination  of  the  fact,  it 
being  such  a  sin  which  calleth  for  vengeance  from  God, 
and  which  is  more  horrible  than  the  ravishing  of  the 
mother ;  but  this  oifence  is  not  to  be  brought  before  any 
judge  by  way  of  accusation,  but  the  very  hearing  of  it 
is  forbidden.  The  judgment  of  Romery  is  by  fire, 
either  to  be  burnt  or  hanged. 

The  judgment  of  heresy  is  fourfold,  one  is  excom- 
munication, another  degradation,  the  third  disinherit- 
ing, the  fourth  is  burning  to  cinders. 

The  judgment  of  majesty  against  the  earthly  king 
is  by  punishment,  according  to  the  ordinance  and  pleas- 
ure of  the  king. 

The  judgment  of  falsifying,  and  of  treason,  is  by 
drawing  of  the  parties,  and  hanging  them  till  they  be 
dead. 


Sect.   15. 

Of  burning. 

The  judgment  of  burning  is  to  hang  until  the  parties 
be  dead,  which  used  to  be  by  burning,  and  in  case  where 
the  damageous  burning  is  by  increase  of  any  combusti- 
blo  matter;  it  was  used  to  cast  them  into  the  fire  when 
they  found  them  fresh  in  the  doing  of  it. 


204  OF  MURDER.  [Ch.  IV.,  Sc.  16. 

Sect.   16. 
Of  murder. 

The  judgment  of  mnrder  is  commonly  by  hanging 
until  the  parties  be  dead,  in  felonies  not  notorious,  and 
in  notorious  it  is  by  beheading  the  murderers,  never- 
theless we  are  to  distinguish,  for  some  kill  men  and  of- 
fend not,  nor  deserve  any  punishment ;  some  are  man- 
slayers  in  signification  and  not  by  name ;  and  some  are 
slayers  of  themselves. 

The  first  are  lawful  judges  who  by  a  right  judgment, 
and  good  conscience  kill  men ;  and  the  ministers,  or  of- 
ficers who  do  executions  of  such  lawful  judgments;  and 
also  as  it  is  of  those  who  kill  without  judgment,  and 
without  offence,  as  it  is  of  those  who  are  without  dis- 
cretion and  kill  men,  as  madmen,  ideots,  infants  within 
the  age  of  seven  years,  and  those  who  kill  men  in  keep- 
ing of  the  king's  peace,  and  of  those  who  kill  by  law, 
as  of  those  men-slavers,  who  kill  men  in  their  mortal 
offences,  notorious  in  fact,  and  as  it  is  of  those  who 
kill  men  in  tlieir  own  defence,  who  otherwise  cannot 
save  their  own  lives. 

The  other  sort  is  of  those  who  have  a  desire  to  kill 
and  cannot,  as  it  is  of  those  who  cast  infants,  sick  peo- 
ple, old  people,  in  such  places  where  they  intend  they 
shall  die  for  want  of  help ;  and  as  it  is  of  those  who  sa 
pain  innocent  men,  that  to  avoid  the  same  they  confess. 


Ch.  IV.,  Sc.  16.]  OF  MURDER.  205 

themselves  to  have  mortally  offended;  those  who  con- 
demn men  by  corrupt  judgment,  although  that  they  do 
not  directly  kill  them ;  and  as  wilful  men-slayers,  who 
appeal  or  indict  innocent  persons  of  mortal  offence,  and 
prove  not  their  appeals,  or  their  indictments;  and  al- 
though these  used  to  he  judged  to  death,  nevertheless 
king  Henrij  I.  ordained  this  mitigation,  that  they  be 
not  judged  to  die,  hut  that  they  have  corporal  punish- 
ment; and  of  those  who  wrongfully  appeal,  ye  are  to 
distinguish ;  for  if  any  one  hath  appealed  another  so 
falsly,  that  there  was  wo  colour  of  appeal  by  judgment, 
or  other  reasonable  proof,  in  such  case  he  was  to  be  ad- 
judged to  make  satisfaction  to  the  party,  and  afterwards 
to  suffer  corporal  punishment. 

King  Kanute  used  to  judge  the  mainprisors  accord- 
ing as  the  principals,  when  their  principals  appeared 
not  in  judgment,  but  king  Hen.  I.  made  this  differ- 
ence, that  the  ordinance  of  Kanute  should  hold  against 
main-prisors  who  were  consenting  to  the  fact,  and  the 
other  should  be  adjudged  against  the  plaintiffs,  accord- 
ing to  the  example  of  th«  principals  if  they  were  pres- 
ent, and  against  the  king  they  were  punished  with  a 
pecuniary  penalty. 

The  third  case  is  of  those  who  burn,  hang,  hurt,  or 
otherwise  kill  themselves. 

Aaain  ve  are  to  distingiiish  of  other  men-slavers;  as 
of  physicians,  jurors,  justices,  witnesses,  of  ideots,  mad- 
men and  fugitives;  for  physicians  and  chirurgions  are 


206  OF  MURDER.  [Ch.  IV.,  Sc.  16. 

skilful  in  their  faculties,  and  probably  do  lawful  cures 
having  good  consciences,  so  as  nothing  faileth  to  the 
patient  which  to  their  art  belongeth;  if  their  patients 
die,  they  are  not  thereby  men-slayers  or  mayhemors; 
but  if  they  take  upon  them  a  enre,  and  have  no  knowl- 
edge or  skill  therein;  or  if  they  have  knowledge,  if 
nevertheless  they  neglect  the  cnre,  or  minister  that 
Avhich  is  cold  for  hot,  or  hot  for  cold,  or  take  little  care 
thereof,  or  neglect  due  diligence  therein,  and  especially 
in  burning,  and  cutting  off  of  members  which  they  are 
forbidden  to  do  but  at  the  peril  of  their  patient;  if 
their  patients  die,  or  lose  their  members,  in  such  cases 
they  are  men-slayers  or  mayhemors. 

Judges  judge  men  sometimes  falsly  to  death  wit- 
tingly, and  sometimes  out  of  ignorance;  in  the  first 
case  they  are  murderers,  and  are  to  be  hanged  by  judg- 
ment, and  not  only  those  who  gave  the  judgment,  but 
the  accessaries,  abettors,  and  those  who  hindred  not 
such  judgment  when  they  might  have  done  it. 

And  in  the  second  place  ye  are  to  distinguish;  for 
one  manner  of  ignorance  is,  as  if  a  thing  known  had  not 
been  known,  and  this  kind  of  ignorance  doth  excuse; 
the  other  is  of  a  thing  not  known  which  ought  to  have 
been  known,  although  he  was  not  bound  to  know  it,  and 
this  excuseth;  also  the  third  kind  is,  which  cometh  of 
not  knowing  that  which  a  man  is  bound  to  know,  and 
this  excuseth  not;  and  note,  that  ignorance  in  itself  is 
no  offence,  but  this  neglect  of  knowing  is  an  offence. 


Ch.  IV.,  Sc.  16.J  OF  MURDER.  207 

The  judge  doth  not  offend  so  much  that  he  doth  not 
make  the  law,  but  he  offendeth  in  foolish  undertaking 
upon  him  to  judge  foolishly  or  falsly.  The  fourth 
kind  of  ignorance  is,  that  a  man  judgeth  of  a  thing 
otherwise  than  rightful,  and  if  such  ignorance  come  of 
the  fact  it  excuseth,  and  of  the  law  then  it  excuseth 
not  .Or  thus,  there  is  one  manner  of  ignorance  which 
one  may  overcome,  and  such  excuseth  not ;  and  there  is 
another  kind  of  ignorance  which  one  cannot  vanquish, 
and  such  excuseth,  whether  it  come  by  nature,  or  by 
too  much  passion,  or  sickness,  or  of  rage. 

And  that  which  is  said  of  judges  is  to  be  intended 
also  of  jurors,  and  of  witnesses  in  cases  notorious,  where 
many  intermedle  feloniously,  and  any  one  be  killed, 
and  there  be  no  cause  to  kill  him;  in  case  also  where 
a  child  is  killed  by  too  much  beating,  and  in  case  where 
many  have  wounded  one  man,  who  died  of  one  sole 
stroke,  all  of  them  generally  are  adjudged  men-slayers 
for  the  apparent  evidence  of  the  fact;  for  none  but 
God  can  judge  the  intentions  of  those  that  gave  the 
stroke  that  it  was  to  kill,  nor  who  intermedled  therein 
to  hinder  that  any  hurt  were  done,  with  a  good  intent; 
some  who  command  what  may  be  for  hurt,  or  may  be 
for  good  ;  some  which  held  the  parties,  and  others  who 
struck. 

Again  ye  are  to  distinguish  of  other  men-slayers;  as 
some  kill  those  who  enter  to  do  a  mischief,  if  such  cases 
be  not  notorious  their  acquittance  or  condemnation  is 


20S  OF  MURDER.  [Ch.  IV.,  Sc.  16. 

in  the  discretion  of  the  suitors ;  also  in  case  when  people 
kill  a  man  in  defence  of  themselves  and  their  posses- 
sions, as  it  falleth  in  disseisin. 

Again,  if  a  man  draw  another  to  fence  with  him, 
or  to  shoot  with  him,  and  he  giveth  him  such  a  wound 
as  if  he  meant  willingly  to  murder  him,  the  same  is 
not  to  be  judged  for  murder,  seeing  men  cannot  judge 
but  according  to  facts,  and  not  according  to  the  intents 
or  thoughts  of  the  parties  hearts. 

Of  fools  also  ye  are  to  distinguish,  for  all  fools  are 
accountable  men-slayers,  as  to  have  judgment ;  but  only 
ideots,  and  infants  within  age,  for  a  crime  cannot  be 
done,  nor  an  offence  but  through  a  corrupted  will,  and 
a  corrupt  will  cannot  be  but  where  there  is  discretion, 
and  innocency  of  conscience  doth  save  fools  outragious ; 
and  therefore  Robert  Volround  ordained,  that  ideots 
being  heirs  should  be  in  the  custody  of  the  king,  for 
their  marriages,  and  for  their  inheritances  of  what 
manors  or  lords  soever  they  held  their  lands. 

Likewise  ye  are  to  distinguish  of  madmen,  for  fran- 
ticks  and  lunaticks  may  offend  mortally,  and  so  they  are 
to  be  accounted  and  judged  for  men-slayers,  but  not 
those  who  are  mad  continually. 

Of  infants  also  ye  are  to  distinguish,  of  infants  mur- 
derers, and  of  infants  killed  ;  the  murderers  within  the 
age  of  one  and  twenty  years  are  not  presently  to  be 
judged  to  death  in  a  fact  not  notorious,  before  they  be 
of  full  age. 


€h.  IV.,  Sc.  16.]  OF  MURDER.  209 

Of  infants  killed  ye  are  to  distinguish,  whether  they 
be  killed  in  their  mothers  womb  or  after  their  births ; 
in  the  first  case  it  is  not  adjudged  murder  ;  for  that  none 
can  judge  whether  it  be  a  child  before  it  be  seen,  and 
linown  whether  it  be  a  monster  or  not;  and  to  infants 
killed  in  tlie  first  year  of  their  age,  the  conusance  be- 
longeth  to  the  church. 

Of  fugitives,  and  of  those  defendants  is  the  distinc- 
tion which  followeth ;  he  who  killeth  a  fugitive  after 
that  he  submitteth  himself  to  the  king's  peace  in  a  fact 
not  notorious,  he  is  to  be  adjudged  to  death  as  a  man- 
slayer,  otherwise  not ;  and  he  who  killeth  a  man  de- 
fending himself,  who  might  fly  and  avoid  the  killing 
is  also  to  be  adjudged  to  death  as  a  man-slayer,  other- 
wise not. 

Of  the  offences  of  robbery,  larceny,  burglary,  where 
the  damage  exceedeth  12  d.  where  the  offenders  are 
taken  in  their  offences,  the  offenders  are  to  be  killed  by 
losing  of  their  heads,  if  the  people  be  present  after  the 
fact  and  testify  the  felony;  and  in  cases  not  notorious, 
the  judgment  is  to  be  hanged  till  they  be  dead. 

And  if  the  defendant  be  a  woman  ye  are  to  distin- 
guish, whether  she  hath  a  husband  or  not,  who  is  yet 
living,  and  also  of  the  action,  whether  it  be  mortal  or 
not ;  for  if  she  be,  and  was  sole  without  a  husband 
which  she  hath  married  at  the  door  of  the  monastery, 
and  the  action  be  mortal,  she  shall  answer  as  a  man 
■doth ;  and  if  she  be  a  feme  covert  ye  are  to  distinguish. 


210  OF  MURDER.  [Ch.  IV.,  Sc.  16. 

for  if  she  be  accused  of  a  mortal  crime  as  principal, 
she  shall  answer,  and  if  as  an  accessary,  then  ye  are  to 
distinguish ;  for  if  she  be  accused  of  consenting  to  the 
felony  of  her  husband,  or  to  any  other,  her  husband  not 
knowing  it,  yet  ye  are  to  distinguish  of  the  crime ;  of 
the  offences  of  larceny,  of  burglary,  and  of  other  small 
offences  she  may  answer,  that  she  was  under  the  com- 
mand of  her  husband,  and  that  she  could  not  contra- 
dict him ;  that  answer  is  peremptory  in  larceny,  and  if 
without  the  knowledge  of  her  husband,  she  shall  an- 
swer :  and  if  a  woman  without  her  husband  be  accused 
to  have  been  in  the  company  of  a  thief  for  a  minute,  or 
a  very  small  time,  she  may  say,  that  she  was  not  in  his 
company  but  as  his  concubine. 

Of  mortal  judgments,  of  outlawry,  of  abjuration  of 
the  realm,  of  vanquished  in  battles  for  mortal  felony, 
and  otherwise  attainted  of  a  notorious  mortal  offence, 
or  not  notorious,  the  offence  is  such  that  the  blood  is 
corrupted ;  and  of  the  offenders  the  blood  is  extinct  in 
every  descent  in  right  of  blood,  so  that  nothing  can  de- 
scend from  them  to  any  of  their  heirs  either  next  or 
remote  by  descent,  but  all  shall  remain  to  the  lords  of 
the  fee,  from  the  time  they  committed  the  offences, 
whoever  were  tenants  thereof  in  the  mean  time  by  what 
contracts  sover;  and  all  fealties,  contracts,  and  obliga- 
tions are  blotted  out  thereby ;  and  of  fugitives  it  is  ac- 
cording as  it  is  with  outlaws,  and  their  goods  which  re- 


Ch.  IV.,  Sc.  16.]  OF  MURDER.  211 

main  (besides  what  belong  to  others)  remain  forfeited 
to  the  king. 

And  the  like  in  remembrance  of  their  felonies,  and 
in  hatred  of  the  felons,  it  is  lawfnl  to  destroy  all  their 
mansion-houses,  to  eradicate  their  gardens,  to  cut  down 
and  waste  their  woods,  to  plough  up  their  meadows,  or 
otherwise  overturn  them,  which  king  Hen.  I.  did  mod- 
erate at  the  request  of  the  Commons  in  this  manner, 
for  the  saving  of  the  lands  of  mortal  felons  in  their 
hands,  of  what  manor  soever  they  were  holden,  that 
he  should  hold  the  same,  and  should  take  the  profits 
thereof  for  one  year,  and  should  do  waste  if  there  were 
not  other  agreement  made  with  him. 

For  the  offence  of  rape,  the  judgment  was  to  be 
hanged  till  he  died,  without  having  regard  whether  the 
woman  ravished  were  a  maiden  or  not,  or  without  dis- 
tinguishing of  what  condition  she  was,  and  whether  at 
the  suit  of  the  person,  or  at  the  king's  suit ;  which  of- 
fence before  the  time  of  king  Ediv.  the  second,  was  by 
burning  of  them  over  the  eyes,  because  the  lust  came  in 
by  eyes,  and  the  heat  of  whoredom  came  from  the  reins 
of  the  lecher.  , 

Seven  things  to  stay  judgment  of  death. 

1  False  judgment,  or  foolish  judgment. 

2  False  testimony. 

3  Default  of  better  answer. 

4  The  hast  of  the  king. 

5  A  woman  with  child. 


212  OF  MURDER.  [Ch.  IV.,  Sc.  16. 

The  first  three  cases  have  respite  by  forty  days,  the 
fourth  by  thirty  days,  the  fifth  by  forty  weeks,  or  more 
if  the  child  be  not  born. 

6  Want  of  discretion,  as  it  is  of  ideots,  madmen, 
and  of  infants. 

7  In  poverty,  in  which  case  ye  are  to  distinguish  of 
the  poverty  of  the  offender,  or  of  thing;   for  if  jwor 
people  to  avoid  famine  take  victuals  to  sustain  their 
lives,  or  cloaths  that  they  die  not  of  cold,  so  that  they 
perish   if  they   keep   not   themselves  from  death,   they 
are  not  to  be  adjudged  to  death,  if  it  were  not  in  their 
power  to  have  bought  their  victuals  or  clothes,  for  as 
much  as  they  are  warranted  so  to  do  by  the  law  of 
nature;  and  although  the  law  hath  no  respect  but  to 
the  souls  of  offenders,  nevertheless  king  Edward  lim- 
ited the  quantity  of  robbery  and  larceny  in  this  man- 
ner; that  is  to  say,  that  none  should  be  adjudged  to 
death,  if  the  larceny,  or  the  stealing,  or  the  robbery 
did  not  exceed   twelve   pence   sterling;   and  note  that 
king  Hen.  the  first  by  Randulph  de  Glanvile  ordained, 
that  in  all  mortal  actions,  that  where  the  action  was 
encountered  with  an  affimative  exception,  that  the  af- 
firmation was  first  to  be  received  in  proof  in  favour  of 
life ;  and  thence  it  was  that  if  one  man  accused  another 
of  felony,  and  he  plead  that  he  is  not  the  man,  the 
proof  was   awarded   to  the   defendant  to  convince  the 
other  of  lying,  either  by  his  body  or  otherwise.      And  so 
it  is  if  the  defendant  say  that  he  could  not  be  at  the 


Ch.  IV.,  Sc.  17.]       OF  PUNISHMENT,  ETC.  213 

doing  of  such  an  act,  at  the  day,  place,  or  year  named 
in  the  plaint,  because  he  was  then  in  another  place, 
where  by  presumption  he  could  not  do  it,  or  that  he 
could  not  be  there  present ;  or  if  he  saith  that  the  thing 
came  to  liini  by  good  title,  in  favour  of  life  the  proof 
belongeth  to  the  defendant  j)eremptorily  at  his  peril, 
to  the  overthrowing  of  the  action,  and  the  exception; 
but  if  the  defendant  solv  denv  the  action,  in  swch  cases 
the  proof  belongeth  to  the  plaintiff. 

Of  outlaws  returned  from  exile,  banished  men,  and 
those  who  have  forjured  the  realm  and  returned,  being 
taken  and  kept  for  a  justifiable  offence,  the  judgment 
is,  that  they  be  hanged  till  they  be  dead. 


Sect.   17. 

Of  punishments  in  divers  kinds. 

The  corporal  punishments  of  death  being  past,  we 
are  to  come  to  corporal  punishments  venials,  which 
are  by  open  infamous  penances ;  and  first  of  punish- 
ments, tallions,  or  (like  for  like)  which  are  in  three 
cases,  that  is  to  say,  in  mayhem,  wounding,  and  im- 
prisonment, in  which  if  the  pleas  be  brought  in  by  ap- 
peals of  felony  for  revenge  only,  then  belongeth  the 
judgment  tallion,  or  like  judgment,  as  mayhem  for 
mayhem,  wound  for  wound,  imprisonment  for  im- 
prisonment. 


214  OF  FALSE  JUDGES.        [Ch.  IV.,  Sc.  18. 

And  if  pardonable  in  form  of  a  trespass,  then  these 
judgments  hold  place,  that  the  offenders  make  reason- 
able satisfaction  to  the  plaintiffs,  and  afterwards  that 
they  be  adjudged  to  do  open  penance  according  to  the 
quantity  of  the  offence. 

Open  penances  are  these ;  amendments  of  highways, 
causways,  bridges,  setting  them  up  in  pillories  or 
stocks ;  imprisonment,  and  abjuration  of  the  realm, 
exile,  banishment,  either  from  off  the  land,  or  from  the 
town  ;  from  entring  into  such  a  place,  or  from  going  out 
of  such  a  place,  by  ransom  of  such  a  penalty,  by  pecim- 
iary  junishment,  or  by  other  fine,  and  such  other  kinds 
of  judgments  penals.  And  if  the  offenders  be  infants, 
or  otherwise  in  custody,  that  in  such  cases  the  guardians 
be  adjudged  to  make  satisfaction  of  the  damages,  and 
the  guardians  to  betake  themselves  to  the  goods  of  the 
trespassers ;  but  the  open  penance  is  to  be  suspended  so 
long  as  they  are  in  ward,  so  that  according  to  the  dif- 
ference of  the  offences  and  the  offenders  the  punish- 
ments were  in  manner  as  followeth ;  and  first  of  false 
judges,  who  the  more  greatly  offend  for  as  much  as 
they  are  in  a  higher  degree  than  other  people. 


Sect.   18. 
Of  false  judges. 
Of  false  judges  assigned,  king  Alfred  ordained  such 


CH    IV.,  Sc.  18.]  OF  FALSE  JUDGES.  215 

judginent,  that  the  wrong  they  do  to  God  whose  vice- 
gerents they  are,  and  to  tlie  king  who  is  put  in  so  noble 
a  phice  as  is  the  seat  of  God,  and  hath  given  them  so 
great  dignity  as  to  represent  the  person  of  God,  and  the 
conusance  as  to  judge  offenders,  that  first  they  be  ad- 
judged to  make  satisfaction  to  those  they  have  hurt, 
and  that  the  remainder  of  the  goods  shouhl  be  to  tlie 
king,  saving  all  other  rights,  and  all  their  possessions, 
with  all  their  purchased  lands  should  be  forfeited  in 
whose  hands  soever  they  be  come,  and  that  they  be 
delivered  over  to  false  Lucifer,  so  low  that  they  never 
return  to  them  again,  and  their  bodies  that  they  be  pun  • 
ished  and  banished  at  the  king's  pleasure,  and  for  a  mor- 
tal false  judgment  that  they  be  hanged  as  other  mur- 
derers ;  and  for  mayhem,  wounding  and  imprisonment, 
that  they  have  like  for  like,  and  the  same  law,  and  in 
the  same  condition. 

The  judg-ment  of  false  judges  ordinaries  is  not  in 
venial  judgments  so  penal,  as  it  is  of  judges  delegates 
before ;  but  they  are  to  make  satisfaction  to  the  parties 
plaintiffs,  and  to  the  king  they  are  punishable  by  a 
pecuniary  penalty,  and  disabled  from  all  manner  of 
jurisdiction  wdiatsoever;  and  in  cases  mortal,  and  tal- 
lions,  according  as  it  hath  been  said  before  of  other 
judges. 


216  OF  PERJURY.  [Ch.  IV.,  Sc.  19. 

Sect.  19. 
Of  perjury. 

Perjuky  is  a  great  offence,  of  which  ye  are  to  dis- 
tinguish either  of  perjury  of  false  testimony,  or  by 
breach  of  faith,  or  by  each  of  the  oath  of  fealty ;  of  the 
first  perjury  ye  are  to  distinguish,  either  of  perjury 
mortal,  or  venial ;  if  of  mortal,  then  the  judgment  was 
mortal,  to  the  example  of  apparent  murderers. 

And  note  that  in  all  personal  actions  there  belongeth 
such  an  award,  that  due  satisfaction  be  made  to  the 
plaintiffs,  and  that  the  offenders  be  punished  with  cor- 
poral pains,  which  pains  are  to  be  brought  out  by  ran- 
som of  money ;  and  if  of  venial  perjury,  then  that  they 
be  banished  for  a  time,  or  for  ever ;  and  that  their 
woods,  meadows,  houses  and  gardens  be  eradicated  ac- 
cording to  the  example  of  murderers,  saving  that  their 
heirs  do  not  remain  disinherited. 

Of  the  other  perjury  ye  are  to  distinguish,  as  breach 
of  faith  to  the  king,  or  to  another  person,  and  if  to  the 
king  ye  are  to  distinguish,  whether  as  his  tenant  or  not ; 
and  if  the  oath  of  fealty  be  in  respect  of  land,  and  the 
fealty  be  broken  in  any  of  the  points,  then  lieth  the 
process  and  defaults  aforesaid ;  and  if  of  an  oath  not 
in  respect  of  land,  ye  are  to  distinguish,  whether  of  the 
common  oath  of  fealty  sworn  to  the  king,  for  the  re- 


Ch.  IV.,  Sc.  20.J     OF  THE  OFFICES  OF  JUSTICES.  217 

maining  in  his  fee,  and  then  only  corporal  punishment 
holdeth  place,  which  passeth  the  punishment  which 
should  be  adjudged  to  others  not  the  king's  offices,  ac- 
cording to  the  king's  pleasure. 


Sect.  20. 

Of  the  offices  of  justices  in  Eyre. 

The  presentments  of  offences  are  ex  officio  by  cor- 
oners, by  sheriffs  and  bailiffs  in  turns  and  views  of 
frank-pledge ;  by  enquests  and  special  justices,  and  by 
kings  ex  officio,  or  by  their  chief  justices,  or  of  their 
justices  generals ;  and  because  that  the  one  have  not 
power  to  determine  the  presentments  of  such  offences, 
nor  to  punish  the  trespasses,  and  the  other  who  can  will 
not,  or  do  not  that  duty  which  oi  rii>ht  thev  mav  do: 
or  punish  the  innocent  and  spare  the  guilty ;  It  w^as 
ancientlv  ordained,  that  the  kings  bv  themselves,  or  bv 
their  chief  justices,  or  by  general  justices  to  hear  and 
determine  all  pleas,  should  go  circuit  every  seven  years, 
through  all  shires,  to  receive  the  rolls  of  all  justices  as- 
signed, of  coroners,  of  enquirers,  of  escheaters,  of 
sheriffs,  of  hundredors,  and  of  bailiffs,  and  of  all  stew- 
ards, of  all  their  judgments,  enquests,  presentments, 
and  all  their  offices,  and  to  examine  those  rolls,  whether 
any  had  erred  therein,  either  in  the  law,  or  to  the  dam- 


218  OF  THE  ARTICLES  IN  EYRE.     [Ch.  IV.,  Sc.  21. 

age  of  the  king,  or  to  the  grievance  of  the  people ;  and 
those  things  which  they  found  not  determined  that  they 
should  determine  them,  and  in  the  Eyre  they  should 
redress  the  officers,  and  punish  the  negligence  of  them 
according  to  the  rules  of  law,  and  that  they  should  en- 
quire of  all  offences,  which  belonged  to  the  king's  suit, 
and  to  his  jurisdiction.      And  note,  that  notwithstand- 
ino-  the  king  had  the  suits  of  all  mortal  offences,  and  of 
wrongs  done  to  the  law,  and  to  the  right  of  his  crown, 
it  is  not  thereby  to  be  understood  that  he  should  have 
the  suit  of  all  offences ;  but  if  any  one  be  plaintiff  and 
doth  not  proceed  in  his  suit  after  the  same  is  affirmed, 
ye  are  to  distinguish,  if  it  be  of  a  personal  offence  venial 
it  sufficeth  for  the  defendants,  for  the  nonsuit  of  the 
plaintiff  doth  suppose  satisfaction  of  the  damage;  and 
if  it  be  of  a  mortal  offence,  yet  the  king  hath  not  the 
suit,  if  not  by  warrant  of  appeal,  or  indictment,  wherein 
it  behoveth  to  the  appellees  and  indictees  that  they  make 
haste  to  acquit  themselves,  for  none  is  bound  to  answer 
to  any  manner  of  action  brought  by  them,  because  they 
are  barred  by  an  exception  of  mortal  infamy,  by  being 
appealed  or  indicted. 


Sect.  21. 

Of  the  articles  in  Eyre. 

Every  shire  used  to  be  warned  by  forty  days  at  the 
least,  by  general  summons  of  the  king's  coming,  where 


Ch,  IV.,  Sc.  21.]     OF  THE  ARTICLES  IN  EYRE.  219 

after  the  essoins  adjourned,  and  the  assize  of  victuals 
set,  and  the  ordinances  proclaiinod,  and  those  of  fran- 
chises adjourned,  and  the  jurors  called,  sworn,  and 
charged  with  their  articles;  and  the  claimers  of  fran- 
chises, and  the  rolls  of  the  justices,  of  coroners,  and  of 
all  sheriffs,  and  of  all  other  manner  of  pleas  and  pre- 
sentments after  the  last  Eyre  taken  and  received ;  the 
first  thing  was  to  inquire,  hear,  and  determine  the 
articles  presented  and  brought  in  the  last  Eyre  which 
were  not  ended,  and  afterwards  to  determine  w^rits  and 
plaints,  to  deliver  visnes,  to  examine  the  rolls,  to  redress 
the  errors,  and  all  other  wrongs  by  right  judgments, 
without  respect  unto  any  person. 

All  the  judges  ordinaries,  and  assigned,  sheriffs, 
bailiffs,  and  stewards  of  lords  of  manors,  and  all  other 
■who  claimed  jurisdiction,  which  any  one  could  attaint 
of  any  wrong  done  against  the  right  rules  of  law,  were 
condemned  for  the  wrongful  judgments,  Avith  regard 
to  the  distinction  of  the  parties  grieved. 

Coroners,  escheators,  sheriff's,  bailiffs,  and  other  min- 
isters doing  wrong  to  the  king,  or  to  the  peo])le,  used 
to  be  punished  according  to  the  example  of  the  other, 
and  further  according  to  the  king's  pleasure. 

The  offenders  which  were  found  using  false  scales 
and  false  measures,  and  gaining  by  breaking  of  any 
assize,  either  of  l)read,  wine,  ale,  cloth,  or  other  mer- 
chandizes, used  to  be  .set  in  the  jiillory,  and  wonuMi  in 
the  tumbrel,  and  afterwards  were  not  suffered  to  mer- 


220  OF  THE  ARTICLES  IN  EYRE.     [Ch.  IV.,  Sc.  21. 

chandize  at  any  time,  nor  could  they  depart  from  the 
place  or  town  to  any  liberty,  because  the  usage  was 
contrary  to  law. 

Cut-purses  taken  de  facto  in  their  notorious  sins  used 
to  be  hanged,  and  for  the  cutting  of  purses  and  stealing 
of  other  goods  under  the  value  of  twelve-pence,  and  less 
than  six-pence,  one  of  their  ears  used  to  be  cut  off  with- 
out carrying  them  to  prison,  or  before  any  judge  as- 
signed, and  to  banish  them  from  the  town,  or  from  the 
manor,  for  the  second  offence. 

And  for  their  larceny  under  the  value  of  six-pence 
they  used  to  set  them  in  the  pillory  for  the  first  offence,, 
and  to  banish  them  for  the  second. 

In  the  judgments  of  personal  trespasses,  venials,  as 
to  the  taxing  of  the  damages  put  in  plaints,  Martin  de 
Patteshall  used  this  course ;  the  judge  used  to  enquire 
ex  officio  of  the  jurors,  by  whom  any  principal  trespass 
was  adjudged  before  him,  the  names  of  all  those  wha 
were  guilty  in  the  first  degree,  and  of  the  accessaries^ 
and  therein  he  proceeded  to  judge  the  damages  accord- 
ing to  the  number  of  the  indictors,  so  that  no  plaintiff 
should  recover  no  more  entire  damages  by  plurality  of 
plaints  for  one  sole  trespass  against  the  trespassers  sev- 
erally. 


Ch.  IV.,Sc.  22.]  OF  FRANCHISES.  221 

Sect.  22. 
Of  franchises. 

Of  franchises  note,  that  because  the  king  doth  not 
hold  his  rights  and  dignities  of  his  crown  but  as  an  in- 
fant, nor  a  grant  from  him  of  any  franchises  is  so  es- 
tablished that  kings  cannot  repeal  them  again,  so  as 
he  give  satisfaction  to  the  value  as  by  warranty ;  and  it 
is  lawful  for  every  one  who  findeth  himself  grieved  to 
sue  for  the  king,  to  seise  every  franchise  forfeited  for 
contumacy ;  as  if  the  bailiff  of  a  franchise  do  not  ex- 
ecution of  the  return  of  the  sheriff  according  to  the  com- 
mand  of  the  king,  by  any  abuse,  as  by  using  his  fran- 
chise too  largely,  or  not  duly ;  by  a  writ  ensuing,  it  is 
commanded  that  the  sheriff  enter  into  the  franchise, 
and  the  king  doth  recover  the  seisin  thereof,  and  so  the 
same  becomes  guildable  which  was  before  a  franchise. 

And  all  those  used  to  forfeit  the  franchise  of  keep- 
ing of  a  gaol  in  foe,  who  by  title  of  franchise  of  in- 
fangthief,  or  of  return  of  writs  hurted  not  without  de- 
lay, the  persons  taken  in  the  places  within  the  fran- 
chise for  felony  done  in  guildables,  and  send  them  into 
the  gaol  in  guildable,  so  that  the  king  do  not  lose  the 
goods  and  chattels  of  the  felons,  nor  his  otlier  rights; 
for  the  king  giveth  no  franchise  to  his  own  prejudice, 
nor  to  the  prejudice  of  others,  especially  of  return  of 


222  OF  SATISFACTION  OF  DEBTS.     [Ch.  IV.,  Sc.  23. 

writs,  nor  to  have  the  custody  of  a  gaol.  An  example 
may  be  as  betwixt  two -neighbours  in  a  franchise,  the 
one  cannot  keep  a  prison  to  the  prejudice  of  the  king, 
and  if  he  do  he  forfeiteth  the  franchise. 

And  it  also  appeareth,  that  jurors  came  out  of  fran- 
chises before  the  king  and  his  commissioners  to  guild- 
able  and  elsewhere  at  his  command,  as  well  upon  crim- 
inal actions  as  upon  reals. 

And  if  any  one  receive  a  felon  wittingly  into  his 
franchise,  the  same  is  now  challengeable. 


Sect.  23. 

Of  satisfaction  of  debts. 

If  a  plaintiff  recover  against  many  by  judgment,  he 
shall  have  but  once  damages,  as  in  this  case ;  if  many 
persons  owe  one  debt,  and  every  one  be  bound  in  the 
whole,  if  one  of  them  make  agreement  for  the  same, 
although  he  do  not  make  a  special  agreement  for  all  the 
debtors,  all  of  them  nevertheless  are  discharged,  be- 
cause satisfaction  bath  respect  to  the  debt,  and  not  to 
the  persons. 


Sect.  24. 

Cases  of  disseisin. 

If    the    jurors    in    petit    assizes    are    agreed    that 
one  shall  give  their  common  verdict  for  all,  and  if  they 


Ch.  IV.,  SC.  24.]      CASES  OF  DISSEISIN.  223 

say  that  they  know  nothing,  nor  that  the  plaintiff  shall 
receive  nothing  because  he  proved  not  his  action; 
and  if  they  be  of  divers  opinions  they  are  not  there- 
for to  be  thrcatned,  nor  iini)risoned ;  but  they  are  to 
be  severed  and  diligently  examined.  And  if  two  jurors 
be  found  to  agree  amongst  all  the  rest,  it  sufficeth  frir 
him  for  whom  they  speak,  and  they  are  not  to  be  ex- 
amined upon  the  title  of  the  possession,  but  it  is  suf- 
ficient for  the  judge  to  know  if  the  plaintiff  were  dis- 
seised of  his  land,  whether  it  were  rightful  or  wrong- 
ful according  to  the  plaint ;  for  though  it  were  right, 
nevertheless  it  was  tortious,  because  the  tenant  used 
force  where  he  should  have  used  judgment,  and  for 
that  he  made  himself  a  judge  therein,  judgment  is  to 
be  given  for  the  plaintiff,  so  as  he  shall  recover  seisin, 
such  as  it  is,  saving  every  right  by  another  writ ;  for 
an  assise  lieth  not  upon  assise  of  the  same  tenement, 
betwixt  the  same  parties,  nor  an  attaint  upon  an  at- 
taint; and  if  the  jurors  for  him,  whether  they  were 
sworn  upon  the  action,  or  upon  the  exceptions,  judgment 
goes  for  him,  and  they  behove  to  enquire  of  the  others 
named  in  the  writ,  and  if  the  disseisors  came  in  with 
force  and  arms,  although  they  hurt  no  person's  body, 
all  of  them  nevertheless  are  to  be  adjudged  to  corporal 
punishment,  according  to  the  quantity  of  the  offence; 
and  if  they  cast  him  out  of  his  dwelling  house,  or  out 
of  his  demesne,  the  felony  of  this  burglary  is  punish- 
able at  the  king's  suit,  or  at  the  suit  of  the  party;  for 


224:  CASES  OF  DISSEISIN.        [Ch.  IV.,  Sc.  24. 

none  is  to  be  cast  out  of  his  house  where  he  dwelleth, 
and  which  he  hath  used  as  his  own  for  a  year,  without 
judgment,  although  he  hath  no  title  thereunto  but  by 
disseisin,  or  intrusion,  and  it  sufficeth  for  force  and 
arms,  only  the  shewing  of  arms  for  to  hurt  the  adver- 
saries ;  and  under  the  name  of  arms  are  contained  bows, 
arrows,  saws,  lances,  spears,  staves,  swords,  and  targets 
of  iron. 

The  jury  ought  to  enquire  of  the  damages,  that  is 
to  say,  of  the  profits  of  the  tenements  since  the  dis- 
seisin, and  to  whose  hands  such  profits  after  came,  and 
of  the  charges,  costs,  and  reasonable  expences  which  the 
plaintiff  hath  sustained  in  his  whole  recovery,  and  in 
all  things,  and  how  much  he  is  endamaged  in  distress 
of  his  goods,  and  in  his  honour ;  and  the  damages  being 
assessed,  it  is  to  be  awarded  that  the  plaintiff  recover 
his  seisin,  such  as  it  is,  according  to  the  view  of  the 
recognitors,  and  the  damages ;  and  the  disseisors  are 
punishable  according  to  the  points  of  the  offences. 

For  the  goods  found  in  the  tenements  whereof  none 
can  know  the  value,  as  charter,  writings,  royal  treas- 
ure, and  such  things  locked  up,  the  plaintiff  hath  an 
action  by  appeal  of  robbery,  or  by  a  writ  of  trespass. 

In  judgment  of  larceny  veniable  satisfaction  is  to 
be  made  to  the  plaintiffs,  to  the  double  of  the  value  of 
the  things  which  are  stolen ;  and  in  case  of  robbery,  to 
the  value  (4  double), or  four  times  value. 


■Ch.  IV.,  Sc.  25. J         OF  AMERCEMENTS.  225 


Sect.  25. 
Of  amercements. 

A  TECUNIARY  paiu  we  call  an  amercement,  which  fol- 
lows real  offenders,  and  mixt,  and  sometimes  are  cer- 
tain, and  sometimes  uncertain.  An  amercement  is  cer- 
tain, sometimes  according  to  the  dignity  of  the  persons, 
as  it  is  of  earls  and  barons ;  for  he  who  holdcth  an  entire 
earldom  is  to  he  amerced  one  hundred  pounds  when  he 
is  least  amerced;  and  a  baron  for  a  barony  entire  one 
hundred  marks,  and  he  who  lioldeth  less,  less;  and 
more,  more ;  according  to  the  quantity  of  the  tenure. 

And  sometimes,  by  a  certain  assise  in  another  case, 
as  it  is  of  escapes  of  people  imprisoned,  in  which  case 
ye  are  to  distinguish,  of  the  place;  as  where  one  es- 
capeth  out  of  the  king's  prison,  or  out  of  the  prison  of 
another;  out  of  the  king's  prison  ye  are  to  distingiiish 
of  the  cause,  whether  it  be  mortal  or  venial,  and  if  mor- 
tal, then  distinguish  if  the  cause  were  adjudged  or  not, 
and  if  adjudged  by  notory  of  fact,  or  of  right,  then  the 
corporal  punishment  is  uncertain ;  for  if  the  keeper,  or 
more  be  assenting  to  the  escape,  punishment  of  death 
followeth  thereupon  ;  and  if  the  cause  was  not  adjudged, 
and  the  keeper  Avas  not  the  king's  officer,  nor  assented 
to  the  escape,  then  the  assise  of  punishment  is  so  many 

15 


226  OF  AMERCEMENTS  TAXABLE.     [Ch.  IV.,  Sc.  26. 

shillings  sterling  or  more,  according  to  the  usage  of  the 
country,  or  of  the  place,  or  of  the  person. 

And  if  the  cause  be  venial,  then  the  escape  is  not 
punishable. 

And  if  the  escape  be  from  the  prison  of  others,  then 
ye  are  to  distinguish  of  the  cause,  and  of  the  caption, 
whether  the  cause  be  mortal  or  venial,  and  if  mortal, 
then  the  pecuniary  pain  aforesaid  holdeth  place;  and 
if  the  cause  be  venial,  there  is  no  punishment  for  the 
escape. 


Sect.  26. 

Of  amercements  taxable. 

Common  amercements  are  taxable  by  the  oaths  and 
affeerments  of  the  peers,  of  those  who  fall  in  miseri- 
cordia,  according  to  the  constitution  of  the  charter  of 
franchises,  which  willeth  that  a  freeman  be  assessed 
when  he  falleth  into  an  amercement  according  to  the 
quantity  of  his  offence,  a  merchant  saving  to  him  his 
merchandize,  and  a  villain  saving  his  wainage ;  and 
these  affeerors  are  to  be  chosen  by  the  assent  of  the 
parties  if  they  will,  but  the  king's  officers  are  the  more 
grievously  to  be  amerced  for  the  breach  of  their  faith, 

etc. 

Many  cases  there  are  where  corporal  punishments  are 
bought  in  by  fines  of  money,  and  such  are  called  ran- 


Ch.  IV.,  Sc.  26.]  OF  AMERCEMENTS  TAXABLE.       227 

soms,  which  is  as  much  as  to  say,  redemption  from  cor- 
poral pains ;  whereof  some  fines  are  common,  as  for 
murders,  others  for  personal  trespasses  of  towns  and 
commonalties ;  which  fines  king  Edward  ordained,  that 
they  should  be  assessed  in  the  presence  of  the  justices 
so  as  the  names  of  them  be  put  into  the  rolls  of  the 
justices,  so  that  the  estreats  may  come  to  the  sheriff 
to  levy  *the  same  by  parcels,  and  not  by  total  summons. 

And  in  case  where  one  recovereth  debt  or  damages, 
king  Edward  enacted,  that  it  should  be  in  the  election 
of  them  to  do  execution  by  levying  such  debt,  and 
damages  of  the  moveable  goods  of  the  debtors  at  the 
very  value,  to  the  value  of  the  thing  in  demand,  except 
the  oxen,  and  beasts  of  the  plough,  together  with  the 
moiety  of  lands,  and  tenements  of  the  debtors,  if  the 
goods  be  held  sufficient  by  a  reasonable  extent  until  the 
debt  and  damages  be  levied. 

Those  who  are  appealed  and  indicted  of  felony,  and 
are  not  to  be  found,  it  behoveth  that  they  be  proclaimed, 
and  especially  before  the  king,  and  his  justices  errants, 
and  if  they  be  found  guilty,  then  they  are  to  be  com- 
manded to  put  them  in  exigent,  so  that  the  first  county 
after  the  Eyre  be  the  first  day,  and  so  they  be  demand- 
able  at  three  county-courts  until  they  be  outlawed,  if 
they  tender  not  themselves  to  the  peace. 


228  OF  THE  OFFICE  [Ch.  IV.,  Sc.  27. 


Sect.  2Y. 
■  Of  the  office  of  justices  in  Eyre. 

To  the  office  of  justices  in  Eyre  it  bclongetli  es- 
pecially to  enquire  by  jurors,  and  by  examinatioif  of  the 
rolls  of  the  coroners,  of  all  that  were  outlawed  after  the 
last  Eyre,  and  after  certificate  of  their  names  they  are 
to  enquire  of  the  names  of  their  pledges,  that  is  to  say, 
whether  they  were  in  dozein,  or  in  frank  pledge,  and  if 
their  pledges  be  in  the  same  county  then  are  the  pledges 
punishable  by  a  pecuniary  pain,  because  they  brought 
not  those  they  took  in  main-prise  to  appear ;  and  if  they 
were  elsewhere  in  dozein,  then  they  are  to  enquire  in 
whose  main-prise  they  were,  and  they  are  punishable 
according  to  the  example  of  the  pledges  for  the  same 
cause. 

To  help  the  memories  of  the  people  are  escripts,  char- 
ters and  muniments  very  necessar}^  to  prove  the  condi- 
tion and  the  points  of  contracts,  gifts,  sales,  feoffments 
and  other  things. 

By  the  statute  of  Leuchfred  it  was  enacted,  that  one 
might  deny  nude  contracts  made  by  words,  and  it  was 
ordained,  that  plaintiffs  should  prove  their  writings, 
which  were  denied,  and  not  proveable  by  neighbours  in 
England,  and  for  foreign  contracts  by  battle,  or  by  the 


Ch.  IV.,  Sc.  27.J         OF  JUSTICES  IN  EYRE.  £29 

setting  to  of  other  seals,  or  by  jurors  at  the  election  of 
the  plaintiffs. 

If  jurors  have  obscurely  or  doubtfully,  or  not  suffi- 
ciently given  their  verdict  in  any  action  or  exception; 
or  any  of  the  parties  be  grieved  thereby;  there  is  remedy 
by  a  commission  of  certificate  to  make  the  jurors  come 
again,  and  the  parties  who  are  the  plaintiffs  ought  to 
have  under  the  king's  seal,  and  of  the  judge,  and  of  the 
parties,  the  proceedings  of  the  plea  before,  and  shew  the 
defect,  and  the  offence  of  the  jurors;  in  which  case  if 
the  judge  by  examination  find  it  doubtful,  the  said 
doubt  is  to  be  reduced  to  certainty,  and  the  (.bscurity 
to  clearness,  and  the  error  into  truth;  and  so  the  first 
judgment  is  to  be  redressed. 


THE  CONTENTS  OF  THE  FIFTH  CHAPTER. 


Section.  Page 

Abusions  of  the  common  law i  231 

The  defects  of  the  great  charter ii  257 

The  reprehensions  of  the  statute  of  Merton  and  Marl- 
bridge iii.  iv  265 

The  reprehensions  of  the  statute  of  Westminster  1 . .         v  26!) 
The  reprehensions  of  the  statute  of  Westm.    2,  and 

of  Gloucester vi  275 

The  reprehensions  of  Circumspecte  agatis vii  286 

The  reprehensions  of  the  new  statute  of  merchants,     viii  287 


230 


CHAPTER   V. 

Sect.  I. 

Abusions  of  the  Common  Law. 

There  are  many  who  say,  that  although  other  realms 
use  a  written  law,  yet  only  England  useth  her  customs, 
and  her  usages  for  law  not  written ;  but  betwixt  rightful 
and  tortious  usages  there  is  a  difference,  for  tortious 
usages  not  warranted  by  law,  nor  suffered  by  Holy 
Scripture,  are  not  at  all  to  be  used:  as  for  example; 
those  of  thieves,  whose  usages  are  to  rob  and  steal. 

And  to  shew  some  abuses  holden  for  usages,  which 
are  frauds  to  the  law,  and  repugnants  to  right,  and 
which  are  not  found  justifiable  by  Holy  Scripture,  is 
this  chapter  made  of  a  collection  of  part  of  the  abusions 
of  the  law,  and  of  persons  erring  from  the  knowledge 
of  the  right  of  law  and  from  lawful  usages. 

Abusion  is  a  disuse,  or  a  misuse  of  right  usages 
turned  to  abuses,  sometimes  by  contrariety  and  repug- 
nancy to  law,  sometimes  by  too  large  a  usage  thereof. 

1    The  first  and  chief  abusion  is,  that  the  king  is 

above  the  law,  whereas  he  ought  to  be  subject  to  it,  as 

it  is  contained  in  his  oath. 

231 


232  ABUSIONS  OF  [Ch.  V.,  Sc.  1. 

2  It  is  an  abuse,  that  whereas  parliaments  ought  to 
be,  for  the  salvation  of  the  souls  of  trespassers,  twice 
in  the  year  at  London,  that  they  are  there  but  very  sel- 
dom, and  at  the  pleasure  of  the  king ;  for  subsidies  and 
collections  of  treasure,  and  where  the  ordinances  ought 
to  be  made  by  the  assent  of  the  king,  and  of  his  earls, 
they  are  now  made  by  the  king  and  his  clerks,  and  by 
aliens,  and  others  who  dare  not  contradict  the  king,  but 
desire  to  please  him,  and  to  counsel  him  for  his  profit, 
though  the  counsel  be  not  covenable  for  the  common 
people,  without  calling  the  counties  thereunto,  and  with- 
out fctllowing  the  rules  of  law,  whereby  it  followeth  that 
many  ordinances  are  grounded  more  upon  pleasure  than 
upon  law, 

3  It  is  an  abuse  that  the  laws,  and  the  customs  of  the 
realm,  with  their  occasions,  are  not  put  into  writing, 
whereby  they  may  be  known,  so  as  they  might  be  known 
by  all  men. 

4  It  is  an  abuse,  that  force  holds  in  disseisins  after 
the  third  day  of  peaceable  seisin,  for  as  much  as  he  is 
not  worthy  to  be  aided  by  the  law,  who  flyeth  from  judg- 
ment, and  useth  force. 

5  It  is  an  abuse,  that  justice  is  delayed  in  the  king's 
court,  more  than  elsewhere. 

6  It  is  an  abuse  to  suffer  any  to  be  in  the  realm 
above  forty  days,  who  is  of  the  age  of  fourteen  years, 
English  or  alien,  if  he  be  not  sworn  to  the  king  by  an 
oath  of  fealty,  and  in  some  pledge  and  dozein. 


Ch.  v.,  Sc.  1.]  THE   COMMON  LAW.  233 

7  It  is  an  abuse,  that  clerks  and  women  are  ex- 
empted to  make  the  said  oath  to  the  king,  seeing  the 
king  taketh  their  homage  and  fealty  for  lands. 

8  It  is  an  abuse  to  hold  an  escape  out  of  prison,  or 
the  breach  of  the  gaol,  to  be  a  mortal  offence,  for  that 
usage  is  not  warranted  by  any  law,  nor  is  it  used  in  any 
place  but  within  this  realm  and  in  France,  for  as  much 
as  one  is  warranted  to  do  it  by  the  law  of  nature. 

0  It  is  an  abuse  to  suffer  so  many  forms  of  writs  to 
be  pleadable,  and  therein  especially  that  the  writs  are 
close,  and  not  patents  as  the  writs  of  right;  and  in  that 
they  are  made  with  interlinings  and  rasure,  and  other- 
wise vicious. 

10  It  is  an  abuse  that  the  money  is  not  quarterable, 
that  it  is  not  silver,  that  it  is  held  payable  if  the  foreign 
circle  be  not  whole,  to  allay  the  money  per  18  d.  and 
make  paying  of  lead  to  every,  etc. 

11  It  is  an  abuse  that  the  king  takes  moi-o  tlian 
twelve  pence  for  the  exchange  of  twenty  shillings  in 
the  pound. 

12  It  is  an  abuse  that  no  pound  is  suffered  to  weigh 
twenty-five  shillings,  or  more  than  twelve  ounces. 

13  It  is  an  alnise  that  Treason  is  not  adjudged  more 
by  appeals  than  it  is. 

14  It  is  an  abuse  that  a  man  Avho  hath  done  man- 
slaughter of  necessity,  or  with  the  peace,  or  not  felo- 
niously, is  detained  and  kept  in  prison  until  he  hath 


234  ABUSIONS  OF  [Ch.  V.,  Sc.  1. 

purchased  the  king's  charter  of  pardon  of  death;  as  it 
is  for  mischance. 

15  It  is  an  abuse  to  hold  the  moveable  goods  of  flyers 
forfeited  before  they  be  attainted  of  the  felony  by  out- 
lawry, or  otherwise. 

16  It  is  an  abuse  to  outlaw  a  man  before  it  hath  been 
enquired  by  the  oaths  of  neighbours. 

17  It  is  an  abuse  to  suffer  a  man  attainted  of  felony 
to  be  an  approver,  and  to  have  a  voice  as  a  true  man, 
and  that  clerks,  women,  infants,  and  others  who  cannot 
combat  are  suffered  to  be  approvers. 

18  It  is  an  abuse  that  others  receive  the  appeals  of 
approvers,  than  coroners,  and  that  they  are  suffered  to 
appeal  oftner  than  once,  or  by  distress  or  otherwise,  or 
in  any  manner  f alsly. 

19  It  is  an  abuse  that  the  Justices  drive  a  true  man 
to  be  tried  by  his  country,  where  he  profereth  to  defend 
himself  against  the  approver  by  battle. 

20  It  is  an  abuse  to  force  j^eople  appealed  by  ai> 
provers  to  acquittals,  where  the  approver  put  in  his 
appeals,  if  he  be  not  thereof  elsewhere  indicted,  or  after 
the  lying  of  the  approver  attainted,  or  after  the  death 
of  the  approver. 

21  It  is  an  abuse  to  suffer  an  approver  to  live,  after 
he  shall  be  attainted  of  a  false  appeal. 

22  It  is  an  abuse  to  suffer  thieves,  and  known  and 
notorious  felons,  to  be  defended  in  sanctuaries. 

23  It  is  an  abuse  that  those  felons  who  are  forjudged 


Ch.  V.,Sc.  1.]  THE  COMMON  LAW.  235 

the    realm    arc    not    siifforod    to   ohuse   their    port    and 
passage  out  of  the  reahn,  and  to  limit  their  jouruies. 

24  It  is  an  abuse  that  thej  enter  into  the  sea,  and 
from  the  sea,  the  church  next  the  sea,  and  that  entries 
into  great  places  are  denied  them,  and  that  they  have 
not  the  privilege  of  pilgrims. 

25  It  is  abuse  to  adjudge  murder  for  default  of 
Engleshire ,  since  murder  ought  to  be  the  English  pun- 
ishment of  an  alien. 

26  It  is  an  abuse  that  acquittances  of  payments 
made  to  the  king  in  the  Exchequer  are  by  tallies,  and 
not  by  the  seal  appointed  for  it. 

27  It  is  abuse  that  the  king's  officers  of  the  Ex- 
chequer, have  jurisdiction  of  other  things  than  the 
king's  monies,  of  his  fees,  and  of  his  franchises,  without 
an  original  writ  out  of  the  chancery  under  white  wax. 

28  It  is  an  abuse  that  the  king's  debts  lie  dormant, 
and  are  delayed  to  be  levied  by  estreats,  since  the  ar- 
rears of  sheriffs,  and  of  other  the  king's  receivers  are  to 
be  levied  without  delay  upon  those  who  ])rofer  them, 
if  they  themselves  be  not  sutticieut,  and  the  arrearages 
of  the  debts  of  others  are  to  be  levied  u})on  their  sureties 
where  the  principals  are  not  sufficient  to  pay  the  ar- 
rearages, the  amercements  are  liable  upon  the  assessors 
if  the  principals  are  not  sufficient;  and  so  it  is  of  fines, 
and  all  other  the  king's  debts;  whereby  it  appeareth 
that  no  debt  ought  to  be  much  behind,  in  so  niucli  as 
some  think  that  none  are  chargeable  with  an  old  debt 


236  ABUSIONS  OF  [Ch.  V.,Sc.  1. 

if  not  of  malice,  or  by  negligence  of  the  king's  officers. 

29  It  is  an  abuse  that  they  of  the  Exchequer,  or 
other,  receive  attornies,  or  hold  conusance  without  an 
original  writ  out  of  the  chancery,  which  none  can  do^ 
without  jurisdiction. 

30  It  is  an  abuse  that  freemen  and  freeholders  have 
ordinary  jurisdiction,  but  in  the  courts  of  lords  of 
manors,  or  of  hundreds  or  counties. 

31  It  is  an  abuse  to  amerce  any  man  by  reason  of  a 
presentment  in  personal  trespass,  in  as  much  as  no  man 
is  to  be  amerced  but  for  the  offence  in  a  real  or  niixt 
action. 

32  It  is  an  abuse  to  amerce  any  man  by  a  present- 
ment made  of  less  than  twelve  sworn  freemen. 

33  It  is  an  abuse  to  assess  an  amercement  certain^ 
without  the  affeerment  of  freemen  sworn  to  it. 

34  It  is  an  abuse  to  affeer  amercements  in  the  ab- 
sence of  those  who  are  to  be  amerced. 

35  It  is  an  abuse  to  charge  the  jurors  with  any 
article   touchino-   wrong   done   betwixt    neighhour    and 


neighbour, 


36  It  is  abuse  to  believe  any  one  hath  jurisdiction^ 
if  a  commission  give  it  not. 

37.  It  is  an  abuse  to  obey  the  judge  who  is  appealed 
of  doing  wrong,  the  example  whereof  appeareth  in  the 
old  writ  of  right,  Et  nisi  feceris  vicecomes  facial. 

38  It  is  abuse  that  a  freeman  be  made  the  king's  of- 
ficer by  any  election  against  his  will. 


Ch.  v.,  Sc.  l.J  THE  COMMON  LAW.  237 

39  It  is  an  abuse  that  the  salaries  of  pleaders  be 
not  certain. 

40  It  is  an  abuse  that  the  defendants  have  not 
amends  of  wrongful  j)laintiffs. 

41  It  is  an  abuse  that  pleaders  are  spared  of  oaths 
according-  to  the  jwints. 

42  It  is  abuse  to  suspend  a  pleader  if  he  be  not  at- 
taint of  a  trespass,  for  which  he  is  condeninable  to  cor- 
poral punishment. 

43  It  is  abuse  to  summon  a  man  for  a  personal 
offence. 

44  It  is  abuse  to  adjudge  a  man  to  death  by  suitors, 
if  not  in  cases  so  known,  that  there  need  no  answer. 

45  It  is  an  abuse  to  l)ring  the  appeal  elsewhere  than 
before  the  coroner  of  the  county,  and  that  appeareth 
by  the  writ  of  appeal,  as  a  writ  grounded  ujjon  error. 

46  It  is  abuse  to  let  to  bail  a  man  appealed,  or  in- 
dicted of  a  mortal  offence,  by  pledges. 

47  It  is  an  al)uso  to  determine  the  appeals  of  felony 
by  judges,  ordinaries,  suitors. 

4>i  It  is  abuse  that  all  persons  are  commonly  re- 
ceivable in  appeals  of  felony. 

40  It  is  abuse  that  all  infants  within  age  are  in 
Avard. 

50  It  is  an  abuse  that  people  may  alien  their  in- 
heritances from  their  heirs  further  than  the  grants,  or 
their  purchase  of  lands  make  mention,  for  none  can 
make  an  assignee,  if  it  be  not  specified  in  the  grant. 


238 


ABUSIONS  OF  [Ch.  V.,  Sc.  1. 


51  It  is  abuse  that  the  inheritances  of  heirs  females 
are  held  in  ward  (though  it  be  of  knights  service)  as 
of  heirs  males,  since  a  woman  is  at  age  at  14  years. 

52  It  is  abnse  that  gaolers  or  their  sovereigns  plun- 
der prisoners,  or  take  from  them  other  things  than 
their  arms. 

53  It  is  abuse  that  prisoners  or  others  for  them  pay 
any  thing  for  their  entries  into  the  gaol,  or  for  their 


coming  out. 


54  It  is  abuse  that  a  prisoner  is  laden  with  irons,  or 
put  to  pain  before  he  be  attainted  of  the  felony. 

55  It  is  abuse  that  the  gaols  are  not  delivered  of  the 
prisoners,  who  are  deliverable  without  delay,  without  a 

writ. 

56  It  is  abuse  to  make  a  man  to  answer  to  the  king's 
suit  where  he  is  not  indicted,  nor  appealed. 

57  It  is  abuse  to  imprison  any  other  than  a  man  in- 
dicted or  appealed,  without  a  special  warrant,  in  case 
for  want  of  pledges  or  main-prisors. 

58  It  is  abuse  that  justices  deliver  prisoners  not 
taken  before  the  date  of  their  warrants,  since  the  king's 
intention  was  not  but  of  those  who  are  then  kept  in 
prison. 

59  It  is  abuse  that  the  writ  of  Odio  et  atia  take  no 
place  but  in  murder. 

60  It  is  abuse  that  that  writ  lieth  for  indictees. 

61  It  is  abuse  that  appellees  or  indictees  of  mortal 
crime  are  got  out  of  prison  by  bail,  or  those  who  are  con- 


Ch.  V.,Sc.  1.]  THE  COMMON  LAW.  230 

demned  to  corporal  punishment  before  they  do  their 
penance,  or  that  they  have  bought  in  the  same  by  fine 
and  ransom. 

62  It  is  abuse  that  the  writs  Sicut  alias  et  sicut 
pluries  pass  the  seal,  in  case  where  it  should  make  those 
officers  inobedient  of  right,  and  to  the  king,  and  should 
charge  others  to  do  such  commandment. 

63  It  is  abuse  to  put  these  words  in  writs,  Nisi 
captvs  sit  per-  speciale  proeceptum  nostrum,  vel  capitalis 
justiciarii  nostri,  vel  pro  foresta  nostra,  etc.,  for  no 
special  commandment  ought  to  exceed  the  conmion  law. 

64  It  is  abuse  to  suffer  the  judges  to  be  plaintiffs 
for  the  king. 

65  It  is  abuse  that  aliens,  or  others  who  have  not 
sworn  fealty  to  the  king  or  infamous  persons,  or  in- 
dicted or  appealed  of  mortal  crime,  or  who  have  not  an 
able  commission,  or  after  any  wrong  done,  or  after 
judgment  given,  be  suffered  to  have  jurisdiction,  or  to 
judge  out  of  the  points  specified  in  their  commissions. 

66  It  is  abuse  that  in  appeals  by  pleaders  are  the 
places,  and  the  coimtries,  and  the  hours  of  the  days,  and 
that  it  is  against  the  peace,  since  every  offence  is  against 
the  peace,  and  such  other  words  needless. 

67  It  is  abuse  to  abate  sufficient  appeals,  according 
to  the  statute  of  Gloucester. 

68  It  is  abuse  that  the  remedial  writs  are  saleable, 
and  that  the  king  commands  the  sheriff,  that  he  take 
sureties  to  his  use  for  the  writ,  for  and  by  the  pur- 


240  ABUSIONS  OF  [Ch.  V.,SC.  1. 

chase  of  these  writs  one  may  destroy  his  enemy  wrong- 
fully; and  because  that  such  fines  and  penalties  run  in 
estreats,  though  they  do  nothing  but  hurt  to  the  pur- 
chaser thereof. 

69  It  is  abuse  that  foreigners  are  not  receivable  in 
actions  by  sureties  of  freemen,  who  have  not  wherewith 
to  find  pledges. 

TO  It  is  abuse  to  distrain  in  personal  actions,  where 
the  profit  of  the  issues  comes  to  the  king,  and  no  profit 
accrueth  to  the  plaintiffs. 

71  It  is  abuse  that  any  plaint  is  received  to  be  heard 
without  sureties  present,  to  testify  the  plaint  to  be  true. 

72  It  is  abuse,  that  it  is  said  that  villainage  is  not 
a  frank  tenement,  and  that  an  assize  lieth  not  of  an 
ejector  for  term  of  years,  as  well  as  it  doth  of  a  frank 
tenement  for  term  of  life,  or  in  fee;  for  a  villain  and 
a  slave  are  not  all  one,  either  in  name  or  signification, 
for  as  much  as  every  freeman  may  hold  in  villainage 
to  him  and  his  heirs,  performing  the  services  and 
charges  of  the  fees. 

73  It  is  abuse  to  hold  that  seisin  accrued  not  to  the 
purchaser  Avhen  the  donor  left  his  goods,  for  as  a  con- 
tract of  marriage  is  good  l)y  the  consent  of  the  wills  of 
men  and  women,  although  that  one  of  them  repent,  and 
after  the  marriage  would  withdraw  himself,  but  he  can- 
not thereby  dissolve  the  contract ;  so  as  well  it  sufficeth 
to  make  the  contract  by  the  delivery  of  seisin  as  by  the 
celebration   of   the   marriage,    although   the   purchaser 


Ch.  v.,  Sc.  l.j  THE  COMMON  LAW.  241 

have  no  other  seisin  by  taking  the  csplees,  nor  any  deed, 
nor  writing  to  testify  the  bargain;  and  if  it  were  that 
a  woman   after  tlie  marriage  were  ravished   and  con- 
sented thereto,   and  the  husband  repleve  her,   and   the 
ravisher  answering  to  the  contract  say,  that  the  husband 
had  no  right  nor  action,  because  he  was  never  fully 
seised  by  taking  the  esplees ;  nor  had  no  deed :  or  said, 
that  he  was  never  out  of  seisin  of  the  woman  because 
she  was  cloathed  with  his  robes,  and  by  her  robe  she  re- 
mained in  his  seisin;  this  exception  nothing  availeth 
him  to  excuse  his  wrong  no  more  than  in  this  case.      If 
a  man  buy  a  horse,  and  agree  with  the  seller,  and  the 
seller  deliver  the  same  to  the  buver,  notwithstanding 
that  the  seller  repent  of  the  bargain,  and  forceably  take 
hack  the  horse,  although  the  buyer  hath  no  action  for 
the  same,  because  he  remained  always  seised  thereof  at 
will ;  such  exception  is  not  good. 

74  It  is  abuse  to  think  that  contracts  for  goods  not 
moveables  are  otherwise  than  for  moveable  goods. 

75  It  is  abuse  to  think  that  seisin  accrueth  not  as 
soon  to  a  purchaser  of  his  purchase,  as  to  an  heir  of  his 
inheritance,  since  the  law  requires  but  three  things  in 
contracts.  1  The  agreement  of  the  wills.  2  Satis- 
faction to  the  donor.  3  Delivery  of  the  possession  and 
gift.  If  a  transmutation  of  seisin  be  given  to  the  pur- 
chaser by  the  donor  at  the  hour  of  one  of  the  clock,  and 
the  purchaser  dieth  at  the  hour  of  three  of  the  clock 
he  dieth  as  well  seised  of  the  tenement  as  he  should  be 

i6 


242  ABUSIONS  OF  [Ch.  V.,  Sc.  i. 

of  a  woman,  or  a  horse,  though  the  donor  have  not  de- 
parted with  and  removed  his  chattels ;  and  it  shall 
never  be  a  good  plea  for  him  to  say,  that  the  freehold 
after  the  transmutation  of  seisin  by  a  simple  livery- 
remained  in  the  donor,  after  this  livery  of  the  tene- 
ment; but  if  the  agreement  of  the  donor  be  not  per- 
formed according  to  the  contract,  then  he  may  help  him- 
self thereby. 

76  It  is  abuse  to  think  that  one  cannot  recover  a 
term  for  years ;  nor  presentments  to  churches  in  man- 
ner of  disseisin,  since  many  reasons  may  avail  to  re- 
disseisors. 

77  It  is  abuse  that  attaints  are  not  granted  in  chan- 
cery without  difficulty,  to  attaint  all  false  jurors,  as  well 
in  all  other  actions  personals,  reals  and  mixt,  as  in  as- 
sizes brought. 

78  It  is  abuse  to  drive  a  distress  out  of  the  hundred. 

79  It  is  abuse  to  make  the  view  of  the  distress  to 
bailiffs,  in  that  a  plaint  will  suffice,  and  a  court,  and 
that  he  is  yet  seised  thereof, 

80  It  is  abuse  that  we  do  not  sue  for  a  tortious  dis- 
tress bv  way  of  felony,  and  that  one  attaint  not  these 
robbers  at  the  king's  suit. 

81  It  is  abuse  that  vicious  contracts  are  by  agree- 
ments maintained  by  law,  as  forbidden  of  offence.  Is 
not  usury  an  offence  ?  is  not  imprisonment  an  offence  ? 
how  can  one  bind  himself  to  usury,  or  to  imprisonment, 
or  a  disseisin,  if  he  do  not  offend. 


Ch.  v.,  Sc.  1.]  THE  COMMON  LAW.  243 

82  It  is  abuse  that  advowsons  of  charters  are  aliened 
by  law  for  years  in  mortgage,  or  to  farm,  or  are  parta- 
ble. 

83  It  is  abuse  that  leases  of  farms  are  not  longer 
than  forty  years,  since  continuance  of  seisin  by  length 
of  time  doth  disinherit  no  man, 

84  It  is  abuse  that  no  land  is  let  to  farm  or  in  fee, 
or  for  years  rendring  rent  by  the  year,  more  than  the 
fourth  part. 

85  It  is  abuse  to  outlaw  a  man  for  a  default,  in  case 
where  the  principal  cause  is  not  felony. 

86  It  is  abuse  that  auditors  are  appointed  by  the 
lords  to  hear  accounts  without  the  assent  of  bailiffs. 

87  It  is  abuse  that  bailiffs  have  no  recovery  of 
damages  from  tortious  auditors. 

88  It  is  abuse  that  regard  is  had  to  the  persons, 
when  such  law  is  not  for  bailiffs  against  their  lords,  as 
e  contra  in  the  right  of  debts  due  by  the  one  to  the 
other. 

89  It  is  abuse  that  a  man  may  challenge  one  for  his 
nief  to  whom  he  never  found  sustenance,  in  as  much 
as  a  villain  is  not  a  villain  but  so  long  as  he  remaineth 
in  custody ;  and  since  none  can  challenge  his  villain  for 
villainage  though  he  be  in  liis  custody,  if  he  find  not 
sustenance  to  his  villain,  or  send  him  to  some  land  in 
his  manor  where  he  may  gain  his  living,  or  otherwise 
retain  him  in  his  service. 


244  ABUSIONS  OF  [Ch.  V.,  Sc.  1. 

90  It  is  abuse  that  villains  are  frank-pledges,  or 
pledges  of  freemen. 

91  It  is  abuse  that  others  suffer  villains  to  be  in 
Iheir  views  of  frank-pledges. 

92  It  is  abuse  that  the  lords  suffer  their  villains  to 
plead,  or  be  impleaded  without  them,  for  a  villain  is 
not  amerceable  in  any  other  court,  because  he  can 
lose  nothing,  as  he  who  hath  nothing  proper  of  his 
own. 

93  It  is  abuse  to  hold  villains  for  slaves,  and  this 
abuse  causeth  great  destruction  of  poor  people,  great 
poverty,  and  is  a  great  offence. 

94  It  is  abuse  that  a  man  is  summoned  who  is  no 
freeholder. 

95  -  It  is  abuse  to  summon  a  man  elsewhere  than 
in  the  land  contained  in  the  demand,  if  it  contain  land. 

96  It  is  abuse  that  a  man  travel  at  his  own  charges, 
by  any  summons  personal. 

97  It  is  abuse  that  a  justice  or  other  make  a  suiji- 
mons,  wdio  is  not  a  freeholder  within  the  county. 

98  It  is  abuse  to  summon  men  without  giving  them 
reasonable  warning  upon  what  to  answer. 

99  It  is  abuse  that  false  causes  of  essoins  are  ad- 
mitted, for  as  much  as  the  law  alloweth  falsity  in  no 
case. 

100  It  is  abuse  that  an  essoiner  is  admitted  in  a 
personal  action  to  the  defendant,  since  one  is  main- 
prized  to  appear  in  court  by  mainprisors. 


Ch.  v.,  Sc.  1.]  THE  COMMON  LAW.  245 

101  It  is  an  iibu.sc  to  receive  an  essoin  cast  in  bv 
an  infant  within  age. 

102  It  is  an  abnse  to  receive  an  attorney,  where  no 
power  so  to  do  is  given  by  writ  ont  of  the  chancery. 

103  It  is  abuse  to  receive  an  attorney,  where  the 
plea  is  not  to  be  judged  in  the  presence  of  the  parties, 
if  not  in  case  where  one  niaketh  an  attorney  general. 

104  It  is  abnse  that  none  can  make  an  attorney  in 
personal  actions,  where  corporal  punishment  is  to  be 
awarded. 

105  It  is  abuse  to  receive  exceptions  in  judgments, 
if  they  be  not  sufficiently  pronounced,  for  from  the 
order  of  the  exception  rarely  ariseth  clear  judgment. 

IOC)  It  is  abuse  to  alloAv  a  warrant  of  voucher  to  a 
thief,  or  in  other  personal  actiou. 

107  It  is  abuse  that  judges  assigiied  shew  not  the 
parties  pleading  their  warrants,  or  of  his  power,  when 
they  demand  it. 

108  It  is  abuse  that  justices  and  their  officers,  who 
kill  people  by  false  judgment,  be  not  destroyed  as  other 
murderers,  which  king  Alfred  caused  to  be  done,  who 
caused  forty-four  justices  in  one  year  to  be  hanged  as 
murderers  for  their  false  judgment. 

1  He  hanged  Darling  because  he  had  judged  Sldiilf 
to  death,  for  the  retreat  of  Ednlf  his  son,  who  after- 
wards acquitted  bini  of  the  fact. 

2  He  hanged  Scgnor  who  judged  Ulfe  to  death  after 
sufficient   acquittal. 


246  ARUSIONS  OF  [Ch.  V.,  Sc.  1. 

3  He  hanged  Gadwine,  because  that  he  judged 
Hackwy  to  death  without  the  consent  of  all  the  juroo's, 
and  whereas  he  stood  upon  the  jury  of  twelve  men,  and 
because  three  would  have  saved  him  against  the  nine, 
Codwine  removed  the  three,  and  put  others  upon  the 
jury,  upon  whom  Hackwy  put  not  himself. 

4  He  hanged  Cole,  because  he  judged  Ive  to  death 
when  he  was  a  mad-man. 

5  He  hanged  Malme,  because  he  judged  Prat  to 
death  upon  a  false  suggestion  that  he  committed  the 
felony. 

6  He  hanged  Athulf  because  he  caused  Copping  to 
be  hanged  before  the  age  of  one  and  twenty  years. 

7  He  hanged  Matches  because  he  judged  During  to 
death  by  twelve  men  who  were  not  sworn. 

8  He  hanged  Ostline  because  he  judged  Seaman  to 
death  by  a  false  warrant,  grounded  upon  false  sugges- 
tion, which  supjwsed  Seaman  to  be  a  person  in  the  war- 
rant, which  he  was  not. 

9  He  hanged  Billing,  because  he  judged  Lesion  to 
death  by  fraud,  in  this  manner  he  said  to  the  people. 
Sir,  all  ye  here  but  he  who  assisted  to  kill  the  man, 
and  because  that  Lesion  did  not  sit  with  the  other  he 
him  commanded  to  be  hanged,  and  said  that  he  did 
assist,  where  he  knew  he  did  not  assist  to  kill  him. 

10  He  hanged  Seafaule  because  he  judged  Olding 
to  death  for  not  answering. 

11  He  hanged  Thurston  because  he  judged  Thurguer 


Ch.  v.,  Sc.  1.]  THE  COMMON  LAW.  247 

to  death  by  verdict  of  enquest,  taken  ex  officio  without 
issue  joined. 

12  lie  hanged  Athelston,  because  he  judged  Herbert 
to  death  for  an  offence  not  mortal. 

13  He  hanged  Romhold  because  he  judged  Lischild, 
in  a  case  not  notorious,  without  appeal,  and  without 
indictment. 

14  He  hanged  Rolfe,  because  he  judged  Dunstan  to 
die  for  an  escape  out  of  prison. 

•  15  He  hanged  Frehurne  because  he  judged  Harpin 
to  die,  whereas  the  jury  were  in  doul)t  of  tluM'r  verdict, 
for  in  doubtful  causes  one  ought  rather  to  save  than 
to  condemn. 

16  He  hanged  Seabright  who  judged  Aihebbrus  to 
death,  because  he  condemned  one  by  a  false  judgiuent 
mortal. 

17  He  hanged  Hale  because  he  saved  Tristram  the 
sheriff  from  death,  who  took  to  the  king's  use  from  an- 
other's goods  against  his  will,  for  as  much  as  any  such 
taking  from  another  against  his  will,  and  robbery  hath 
no  difference. 

18  He  hanged  Arnold  because  he  saved  Boyliffe, 
who  robbed  the  people  by  colour  of  distresses,  whereof 
some  were  by  selling  distresses,  some  by  extortion  of 
fines,  as  if  betwixt  extortion  of  fines,  releasing  of  tor- 
tious distresses,  and  robbery  there  were  difference. 

19  He  hanged  ErMnwald  because  he  hanged  Frank- 
lin, for  naught  else  but  because  he  taught  to  liim  who 


248  ABUSIONS  OF  [Ch.V.,Sc.  1. 

vanquished  by  battle  mortal  to  say  the  word  of  cravant. 

20  He  hanged  Bermond  because  he  caused  Garholt 
to  be  beheaded  by  his  judgment  in  England,  for  that 
for  which  he  was  outlawed  in  Ireland. 

21  He  hanged  Alkman  because  he  saved  Cateman 
by  colour  of  disseisin,  who  was  attainted  of  burglary. 

22  He  hanged  Saxmond  because  he  hanged  Barrold 
in  England,  where  the  king's  writ  runneth  for  a  fact 
which  he  did  in  the  same  land  where  the  king's  writ 
did  not  run. 

23  He  hanged  Alflet  because  he  judged  a  clerk  to 
death,  over  whom  he  had  not  cognizance. 

24  He  hanged  Piron  because  he  jiidged  Hanting  to 
death  because  he  gave  judgment  in  appeal  before  the 
forty  days  pendant  the  appeal,  by  a  writ  of  false  judg- 
ment before  the  king. 

25  He  hanged  Diling  because  he  caused  Eldon  to 
be  hanged,  who  killed  a  man  by  misfortune. 

26  He  hanged  Osivin  because  he  judged  Fulclier  to 
death  out  of  court. 

27  He  hanged  Muclin,  because  he  hanged  Helgrave 
by  warrant  of  indictment  not  special. 

28  He  hanged  Home  because  he  hanged  Simin  at 
days  forbidden. 

29  He  hanged  Wolmer  because  he  judged  Graunt  to 
death  by  colour  of  a  larceny  of  a  thing,  which  he  had 
received  by  title  of  bailment. 

30  He  hanged  Therberne  because  he  judged  Osgot 


Ch.  v.,  Sc.  1.]  THE  COilMOX  LAW,  249 

to  death  ior  a  fact,  whereof  he  was  acquitted  before, 
against  the  same  plaintiff,  which  acquittance  he  ten- 
dred  to  aver  by  oath,  and  because  he  would  not  aver 
it  by  record,  Therberne  would  not  allow  of  the  acquit- 
tal which  he  tendred  him. 

31  lie  haniiod  Wolsior  because  he  adjudged  Ilau- 
heii  to  death  at  the  suit  of  the  king,  for  a  fact  which 
Haubert  confessed,  and  of  which  the  king  gave  him  his 
pardon,  but  he  had  no  charter  thereof,  nevertheless  he 
vouched  the  king  to  warrant  it,  and  further  tendred  to 
aver  it  by  inrolment  of  the  chancery. 

32  lie  hanged  OsUtell  because  he  judged  Catling  to 
death,  by  the  record  of  the  coroner,  whereby  replication 
allowable  the  plea  did  not  hold.  And  the  case  was 
such.  Catling  was  taken  and  punished  so  much,  as  he 
confest  he  had  mortally  offended,  and  that  to  be  quitted 
of  the  pain  ;  and  Oshltell  adjudged  him  to  death  upon 
his  confession  which  he  had  made  to  the  coroner,  with- 
out trial  of  the  truth  of  the  pain,  or  the  fact.  And 
further,  he  caused  the  coroners  and  officers  accessaries 
to  be  apprehended,  who  hanged  the  people,  and  all 
those  who  might  have  hindred  the  false  judgment,  and 
did  not  hinder  the  same  in  all  cases;  for  he  hanged  all 
the  judges  who  had  falsly  saved  a  man  guilty  of  death, 
or  had  falsly  hanged  any  man  against  law,  or  any  rea- 
sonable exception. 

33  ^He  hanged  the  suitors  of  Calevot,  because  they 
had  adjudged  a  man  to  death  in  a  case  not  notorious, 


250  ABUSIONS  OF  [Ch.  V.,Sc.  1. 

although  he  were  guilty  thereof;  for  no  man  can  judge 
within  the  realm  but  the  king,  or  his  commissaries,  ex- 
cept those  lords  in  whose  lordships  the  king's  writ  doth 
not  run. 

34  He  hanged  the  suitors  of  Z)orces^er/ because  they 
judged  a  man  to  death  by  jurors  in  their  liberty,  for 
a  felony  which  he  did  out  of  the  liberty,  and  whereof 
they  had  not  the  conusance  by  reason  of  foreignty. 

35  He  hanged  the  suitors  of  Cirencester,  because 
they  kept  a  man  so  long  in  prison,  that  he  died  in 
prison,  who  would  have  acquitted  himself  by  foreigners, 
that  he  offended  not  feloniously. 

36  In  his  time  the  suitors  of  Doncaster  lost  their 
jurisdiction,  besides  other  punishments,  because  they 
held  pleas  forbidden  by  the  customs  of  the  realm  to 
judges,  ordinaries,  and  suitors  to  hold. 

37  In  his  time  Colgrin  lost  his  franchise  of  en- 
fangthief,  because  he  would  not  send  a  thief  to  the- 
common  gaol  of  the  county,  who  was  taken  within  his 
liberty  for  a  felony  done  out  of  the  liberty  in  guildable. 

38  In  his  time  Buttolphe  lost  his  view  of  frank- 
pledges, because  he  charged  the  jurors  with  other  ar- 
ticles than  those  which  belonged  to  the  view,  and 
amerced  people  in  personal  actions  where  one  was  not 
to  be  amerced  by  a  pecuniary  punishment.  And  ac- 
cordingly he  caused  mortal  rewards  to  criminal  judges 
for  wrongful  mortal  judgments,  and  so  he  did  for 
wrongfvil      judgments      venials.       Imprisonment      for 


Ch.  v.,  Sc.  1.]  THE  COMMON  LAW.  251 

wrongful  imprisonments,  and  like  for  like,  with  the 
other  punishments ;  for  he  delivered  Thelweld  to  prison, 
because  he  judged  men  to  prison  for  an  offence  not 
mortal. 

39  He  judged  Litbing  to  prison,  because  he  im- 
prisoned Herhole  for  the  offence  of  his  wife. 

He  judged  Rutwood  to  prison,  because  he  imprisoned 
Olde  for  the  king's  debt. 

On  the  other  side  he  cut  off  the  hand  of  Haulf ,  be- 
cause he  saved  Armoch's  lunid,  who  was  attainted  be- 
fore him  that  he  had  feloniously  wounded  Richhold. 

He  judged  Edulfe  to  be  wounded,  because  he  judged 
not  Arnold  to  be  wounded,  who  feloniously  had 
wounded  Aldens. 

In  lesser  offences  he  did  not  meddle  with  the  judg- 
ments, but  disinherited  the  justices,  and  removed  them 
according  to  the  points  of  those  statutes  in  all  points 
where  he  could  understand  that  they  had  passed  theij- 
jurisdiction,  or  the  bounds  of  their  delegacy,  or  of  their 
commission ;  or  had  concealed  fines,  or  amercements, 
or  other  thing  which  belonged  to  the  king;  or  h;ul  re- 
leased or  increased  any  punishment  contrary  to  law,  or 
procured  the  exercising  or  i^leading  without  warrant, 
■either  by  the  property,  by  warrant  of  writ,  or  of  a  plaint 
of  the  possession,  or  e  contra;  or  in  the  venial  actions  by 
words  of  felony,  or  e  contra,  or  had  sent  to  no  party  a 
transcript  of  his  plea  at  the  journey,  or  any  of  the 
parties  wrongfully  grieved,  or  done  any  other  wrong  in 


252  ABUSIONS  OF  [Ch.  V.,  Sc.  1. 

disallowance  of  a  reasonable  exception  of  the  parties,  or 
to  the  judgment. 

In  his  time  every  plaintiff  might  have  a  commission 
and  a  writ  to  his  sheriff,  to  the  lord  of  the  fee,  or  to 
certain  justices  assigned  npon  every  wrong  which  was 
done. 

In  his  time  law  was  hastened  from  day  to  day,  so 
that  above  fifteen  days  there  was  no  default  nor  essoin 
adjourn  able. 

In  his  time  the  parties  might  carry  away  the  parts 
of  their  pleas  nnder  the  seal  of  the  judges,  or  the  ad- 
verse parties. 

In  his  time  there  was  no  stay  of  writs,  all  remedial 
writs  were  grantable,  as  of  debt  by  virtue  of  an  oath. 

In  his  time  the  judges  used  to  take  twelve  j^ence  of 
every  ])laintiff  at  the  journey. 

In  his  time  plaintiffs  recovered  not  only  damages 
of  the  issues  of  the  possessions,  and  of  the  fees,  but  re- 
covered costs  as  to  the  hurts,  and  as  much  as  one  might 
lawfully  tax,  bv  the  occasion  of  such  a  fact. 

100  It  is  abuse  that  such  a  multitude  of  clerks  are 
suffered  to  be  made,  whereby  the  king's  jurisdiction 
is  overthrown. 

110  It  is  abuse  that  clerks  have  leases  of  that  which 
belongs  to  the  temporalty,  and  hold  lay  fees. 

111  It  is  abuse  that  pleas  hold  upon  Sundays,  or 
other  days  forbidden,  or  before  sun-rising,  or  in  the 
night  time  in  dishonest  places. 


Ch.  v.,  Sc.  1.]  THE  COMMON  LAW.  253 

112  It  is  abuse  tliat  none  answer  to  a  felony,  or 
other  personal  action  of  trespass  or  scandal,  before  his 
age  of  one  and  twenty  years. 

113  It  is  abuse  that  wlien  the  action  is  affirmative 
to  take  the  proof  against  the  answer,  or  plea  affirmative. 

114  It  is  abuse  that  a  man  be  accused  of  life  and 
member,  ex  officio,  without  suit  or  without  indictments. 

115  It  is  abuse  that  the  justices  shew  not  the  in- 
dictments to  those  who  are  indicted,  if  they  require  the 
same, 

IIG  It  is  abuse  that  no  man  in  England  doth  an- 
swer for  a  thing  done  out  of  the  realm,  et  e  contra,  or 
in  a  privileged  place,  where  the  king's  writ  runiietli 
not,  for  a  thing  done  to  a  foreigner,  et  e  contra,  or  with- 
in a  place  within  a  franchise,  for  a  thing  done  in  guild- 
able. 

117  It  is  abuse  that  rape  is  a  mortal  offence. 

118  It  is  abuse  that  rape  extends  to  others  than 
virgins. 

119  It  is  abuse  to  outlaw  a  man  if  not  for  felony. 

120  It  is  abuse  that  one  take  in  England  any  one 
outlawed  in  Ireland,  or  elsewhere  out  of  the  realm ;  or 
that  one  is  put  out  of  his  fee  l)v  judgment  of  law  of 
judges  ordinaries,  suitors. 

121  It  is  abuse  to  count  of  so  long  time,  whereof 
none  can  testify  the  hearing  or  seeing,  which  is  not  to 
endure  generally  above  forty  years. 

122  It  is  abuse  that  a  man  have  an  action  personal 
from  a  longer  time  than  the  last  Eyre. 


254  ABUSIONS  OF  [Ch.  V..  Sc  1. 

123  It  is  abuse  of  the  writ  of  account,  for  which 
every  one  may  imprison  another  wrongfully. 

124  It  is  abuse  that  one  is  bound  to  render  an  ac- 
count of  issues  of  land  whereof  he  is  guardian  by  title 
of  law. 

125  It  is  abuse  that  the  writ  of  Ne  in  juste  vexes 
is  so  out  of  use. 

126  It  is  abuse  that  battles  be  not  in  personal  actions 
as  well  as  in  felonies. 

127  It  is  abuse  that  proofs  and  purgations  be  not 
by  the  miracle  of  God  where  other  proof  faileth. 

128  It  is  abuse  to  join  battle  betwixt  persons  who 
are  not  admitted  to  wage  battle. 

129  It  is  abuse  that  a  knight  is  otherwise  armed 
than  another  man  in  a  combat. 

130  It  is  abuse  that  judges  have  cognizance  by  orig- 
inal writ,  or  warrant  by  vouchers,  or  in  others  to  Avhich 
his  jurisdiction  extendeth  not. 

131  It  is  abuse  to  suffer  a  voucher  to  warranty  in 
the  king's  writ  of  Quo  warranto. 

132  It  is  abuse  that  those  who  are  found  usurers 
by  indictments  after  their  deaths  are  suffered  to  be 
buried  in  sanctuaries,  and  that  the  lands  do  not  escheat 
to  the  lords  of  the  fees. 

133  It  is  abuse  that  vicious  obligations  drive  the 
authors  to  personal  damages,  in  as  much  as  they  are 
voidables. 

134  It  is  abuse  to  compel  jurors,  witnesses,  to  say 


I 


Ch.  v.,  Sc.  1.]  THE  COMMON  LAW.  255 

that  which  they  know  not,  by  distress  of  fine  and  im- 
prisonment after  their  verdict,  when  they  could  not  say 
any  thing, 

135  It  is  abuse  to  use  the  words  (to  their  knowl- 
edge) in  their  oath,  to  make  the  jurors  speak  upon 
thoughts,  since  the  chief  words  of  their  oaths  be  that 
they  speak  the  truth. 

136  It  is  abuse  that  one  exam-ine  not  the  jurors, 
though  they  find  at  least  two  to  agree. 

137  It  is  abuse  to  put  more  words  in  the  doing  of 
homage ;  but  thus,  I  become  your  man,  for  the  land 
which  I  claim  to  hold  of  you. 

138  It  is  abuse  to  answer  or  appear  by  attorney. 

139  It  is  abuse  to  make  justices  such  parties  with- 
out the  writ  in  the  king's  presence,  if  not  with  the  as- 
sent of  the  parties. 

140  It  is  abuse  that  the  writs  of  audita  querela,  and 
conspiracy  and  others  contain  nut  the  substance  of  the 
plaints. 

141  It  is  abuse  that  the  justices  of  the  bench  med- 
dle with  more  pleas  than  of  wrong  done  against  fines, 
grand  assises,  translation  of  pleas  out  of  lower  courts, 
and  of  darrein  presentment,  and  of  the  rights  of  the 
king,  queen  and  their  allies. 

142  It  is  abuse  to  use  a  Pone  when  their  causes  are 
discussed,  if  the  parties  challenge  the  same,  for  a  lying 
purchaser  ought  not  to  have  benefit  of  his  leasings. 

143  It  is  abuse  to  sue  forth  grand  distresses  in  pleas 


256  ABUSIONS,  ETC.  [Ch.  V.,  Sc.  1. 

of  attachments,  whereof  the  defaults  are  to  the  profit 
of  the  king,  and  not  of  the  plaintiifs. 

144  It  is  abuse  that  trespassers  who  have  nothing, 
are  not  banished  from  towns,  comities,  manors,  and 
hundreds  as  they  used  to  be. 

145  It  is  abuse  to  hold  that  a  petit  cape  maketh 
other  title  but  to  save  every  right  in  real  action,  not  in 
others. 

146  It  is  abuse  that  the  issues  of  grand  distresses 
in  mixt  actions  come  not  to  the  profit  of  the  lords  of 
the  fees,  and  others  who  have  courts,  as  they  do  to  the 
king,  of  pleas  moved  in  his  court  upon  the  same  actions. 

147  It  is  abuse  to  think  the  same  punishment  is  to 
be  to  mainprisors,  as  to  principals  who  make  default, 
whereas  they  are  amerceable  only  in  courts. 

148  It  is  abuse  to  amerce  a  man  in  plesive  of  fee, 
or  of  service,  going  out  of  the  land  by  default  in  a  per- 
sonal action  or  real ;  for  outlawry  or  loss  of  land  is  suf- 
ficient punishment. 

149  It  is  abuse  that  sheriffs  do  not  execution  of 
writs  vicecountiels,  in  as  much  as  the  plaintiffs  have 
found  pledges  de  prosequend ,  where  there  is  no  mention 
to  take  sureties. 

150  It  is  abuse  to  distrain  for  arrearages  of  services 
issuing  out  of  lands,  moveable  goods,  whereas  no  dis- 
tress ought  to  be  but  in  the  land  only. 

151  It  is  abuse  that  the  tenant  may  without  punish- 
ment enfeoff  a  third  person  of  the  land,  of  his  lord 


Ch.  v.,  Sc.  2.]     DEFECTS  OF  THE  CHARTER.  257 

in  prejudice  of  him,  or  do  other  thing,  or  say  any  thing 
against  the  points  of  his  oath  of  fealty. 

152  It  is  abuse  to  suffer  a  man  who  is  a  champion 
to  be  a  witness. 

153  It  is  abuse  that  none  have  recovery  of  wrong 
done  by  the  king,  or  the  queen,  but  at  the  king's  pleas- 
ure. 

154  It  is  abuse  to  judge  a  man  to  divers  punish- 
ments for  one  trespass,  as  to  a  corporal  punishment  and 
to  a  ransom,  since  ransom  is  but  a  redemption  from 
corporal  punishment  by  payment  of  a  fine  of  money. 

155  It  is  abuse  that  people  defamed  of  offence  are 
not  barred  from  making  oaths,  and  of  their  dignities, 
and  of  their  other  honors. 

And  divers  other  abuses  appear  by  those  who  well 
understand  the  writ  before  written. 


Sect.  2. 

The  defects  of  the  Great  Charter. 

Seeing  how  the  law  of  this  realm,  founded  upon 
forty  points  of  the  great  charter  of  liberties,  is  damna- 
I)ly  disused  by  the  governors  of  the  law,  and  by  statutes 
afterwards  made  contrary  to  some  of  the  points,  to 
shew  the  defects  or  defaults  of  the  points  aforesaid,  and 
the  errors  of  some  statutes,  I  have  put  in  memory  this 
17 


258  DEFECTS  OF  THE  CHARTER.     [Ch.  V.,  Sc.  2. 

chapter  of  the  defect,  and  reprehensions  of  statutes; 
and  first  of  the  defects  of  the  points  of  the  great  char- 
ter. 

To  the  point,  that  the  chnrch  of  England  shall  have 
all  her  rights  and  liberties  inviolable ;  for  first  it  were 
necessary  to  ordain  a  corporal  punishment,  and  namely 
to  the  law  judges,  the  king's  ministers,  and  others,  who 
judge  clerks  for  mortal  crimes  to  corporal  punishments, 
infamatories,  and  do  detain  their  goods  after  their  pur- 
gation, and  to  those  secular  judges  who  take  upon  them 
cognizance  in  causes  of  matrimony,  and  testaments,  or 
other  special  things. 

The  other  point  is,  that  every  freeman  of  the  realm 
inherit  the  liberties  of  the  charter,  and  whereof  every 
one  is  disseised  as  of  his  freehold,  which  is  not  adjudged 
according  to  the  points  following,  there  lieth  no  recovery 
of  dama2;es  bv  the  assize  of  novel  disseisin. 

A  third  point  seemeth  to  be  defective,  for  as  the  re- 
lief of  an  earldom  entire  was  to  decrease  in  him  who 
held  less,  so  it  seemeth  that  that  certainty  was  to  en- 
crease  as  much  if  an  earl  held  more ;  so  as  he  who  held 
tAvo  earldoms,  and  who  held  an  earldom  and  a  barony, 
shall  pay  as  an  earldom  and  as  a  barony;  and  so  of 
other  fees  if  they  be  not  expressed  in  the  charter,  that 
the  fine  of  one  hundred  pound  be  not  an  earldom  for 
no  point  increased,  and  so  of  other  certainties. 

The  fourth  point  is  defective  (for  although  it  be  that 
such  a  point  be  grounded  upon  law,  to  bind  the  lord  of 


Ch.  v.,  Sc.  2.]     DEFECTS  OF  THE  CHARTER.  259 

fees  to  warranties  by  taking  of  such  homages,  whether 
they  took  thcni  of  the  right  heirs  or  not)  because  it  is 
not  expressed  who  shoiikl  be  g-uardian  of  the  fees  in 
time  of  vacancy,  and  have  the  issnes  in  tlie  mean  time 
in  case  where  the  right  heirs  fly  from  their  lords,  or 
cannot  or  will  not  do  their  homage. 

In  the  points  of  wards  it  is  defective,  for  as  mnch 
as  no  difference  is  expressed  between  the  heirs  males, 
and  the  heirs  females,  for  a  woman  hath  her  age  when 
she  is  fully  of  fourteen  years,  and  the  seven  years  be- 
sides were  not  ordained  first  but  for  the  males,  who  be- 
fore the  age  of  one  and  twentv  years  were  not  sufficient 
to  bear  arms  for  the  defence  of  the  realm. 

And  note  that  every  guardian  is  chargeable  to  three 
things :  1  That  he  maintain  the  infant  sufficiently. 
2  That  he  maintain  his  riglits  and  inheritance  with- 
out waste.  3  That  he  answer  and  give  satisfaction  of 
the  trespasses  done  by  the  infants. 

The  defect  of  the  point  of  disparagements  appear- 
eth  amongst  the  statutes  of  Morion. 

And  the  default  of  frank  benches  and  widows  in  tli^ 
same  manner,  in  which  point  it  is  sufficiently  expressed 
that  no  woman  is  dowable,  if  she  have  not  been  solemnly 
espoused  at  tlic  door  of  the  monastery  and  tliere  en- 
dowed. 

In  the  point  which  requireth  that  the  city  of  London 
have  its  ancient  liberties,  and  her  free  customs,  it  is  to 
be  interpreted   in   this  manner;   that  the  citizens  have 


260  DEFECTS  OF  THE  CHARTER.     [Ch.  V.,  Sc.  2. 

their  liberties  whereof  they  are  inherited  by  lawful 
title  of  the  gifts  and  confirmations  of  kings,  which  they 
Lave  not  forfeited  by  any  abuse,  and  that  they  may  have 
their  liberties  and  customs  which  are  sufferable  by  law, 
.and  not  repugiiant  to  the  law.  And  where  it  is  said 
(of  London)  that  the  interpretation  be  as  well  of  the 
cinqne  ports,  and  of  other  places. 

The  point  which  forbiddeth  tortious  distresses  for 
fees  is  covenable  in  itself,  but  the  same  shall  not  grieve 
any  man  of  the  realm  who  hath  tenements,  that  it  is 
no  trespass  in  him,  or  by  his  ministers,  as  appeareth 
in  the  chapter  of  Nativo  habendo. 

The  point  which  forbiddeth  that  Common  pleas  fol- 
low not  our  court,  is  to  be  interpreted  in  this  manner ; 
that  the  people  shall  not  travel  to  sue  in  the  king's 
household  in  the  country,  as  they  used  to  do.  But  this 
point  willeth,  that  the  plaintiffs  have  commissions  to 
sheriffs,  to  lords  of  manors,  and  to  justices  assigned,  so 
that  right  be  done  to  the  parties  in  certain  places,  where 
the  parties  and  jurors  may  be  the  less  travelled. 

Although  it  be  that  the  chapter  command  that  jjHit 
assizes  be  taken  in  their  counties,  being  made  for  the 
ease  of  jurors,  yet  it  is  disused,  in  as  much  as  the  jus- 
tices make  the  jurors  to  come  from  the  furthest  marches 
of  the  counties,  whereas  it  were  better  that  the  justices 
rode  from  hundred  to  hundred,  than  so  to  travel  the 
people. 

The  point  of   amercements  is  misused  by  justices, 


Ch.  v.,  Sc.  2.J     DEFECTS  OF  THE  CHARTER.  261 

sheriffs,  bailiffs,  stewards,  and  others,  who  amerce  the 
people  in  certain  in  this  manner,  putting  such  a  one  to 
so  much  for  a  contempt  or  other  trespass  without  a  per- 
sonal trespass,  and  without  the  affeerment  of  the  peo- 
ple sworn  to  it,  and  without  specifying  the  manner  and 
the  quality  of  the  contempt.     Cap.  14. 

Again,  where  the  affeerors  ought  to  be  chosen  with 
the  assent  of  those  who  are  amerced,  and  in  a  com- 
mon place,  the  lords  make  the  affeerors  to  come  to  their 
houses  to  affeer  the  amercements  according  to  their 
pleasures. 

The  point  which  forbiddcth  that  rivers  be  defended 
is  disused,  for  many  rivers  are  now  appropriate  and 
gotten,  and  so  put  in  defence,  which  used  to  be  common 
to  fish  in  the  tiino  of  king  Hen.  I.     Cap.  \(\. 

The  chapter  which  forbiddeth  that  sheriffs,  consta- 
bles, coroners,  nor  bailiffs  shall  hold  pleas  of  the  crown 
seemeth  not  needful,  for  appeals  of  felony  are  not  here 
to  be  brought  before  coroners,  and  the  exigents  and 
judgments  pronounced,  and  therefore  this  point  had 
need  to  have  had  more  words  to  have  expressed  the 
meaning  of  it.      Cap.  17. 

For  the  end  of  the  chapter  of  the  moveable  goods  of 
the  dead,  it  appeareth  that  tlie  action  accrueth  to  the 
widows,  and  to  the  children  to  demand  their  reasonable 
parts  of  the  goods  of  their  father  taken  away. 

Tliat  which  is  forbidden  to  constables  to  take  is  for- 
bidden to  all  men,  in  as  much  as  there  is  no  difference 


262  DEFECTS  OF  THE  CHARTER.     [Ch.  V.,  Sc.  2. 

betwixt  taking  from  another  against  his  will  and 
liberty,  whether  it  be  horses,  victuals,  merchandizes, 
carriages,  or  other  manner  of  goods.     Cap.  19,  20. 

The  chapter  for  holding  the  lands  of  felons  for  a 
year  and  a  day  is  out  of  use;  for  whereas  the  king 
ought  not  to  have  the  waste  by  law,  or  but  the  year  in 
the  name  of  fine  for  safeguard  of  the  land  from  spoil, 
the  king's  officers  take  both. 

The  defence  of  the  precipe  is  not  holden  in  that  they 
do  it  without  writs  of  possession  of  farms  every  day, 
that  the  lords  lose  the  cognizance  of  their  fees,  and  the 
advantage  of  their  courts. 

The  point,  which  commands  that  one  measure  be 
throughout  the  whole  reahn  and  one  weight,  is  disused 
by  merchants  and  burgesses,  using  for  the  pound  the 
old  weight  of  twenty  shillings  of  right  assize,  and  also  of 
ells  and  other  measures. 

The  defence  which  is  made  of  the  writ  De  odio  et 
atla,  that  the  king  be  not  chancellor,  nor  take  any  thing 
for  granting  the  writ  ought  to  extend  to  all  remedial 
writs,  and  the  same  writ  ought  not  extend  only  to  the 
felonies  of  murder,  but  it  ought  to  extend  to  all  felonies, 
and  not  only  in  appeals,  but  in  indictments. 

The  point  which  forbiddeth  that  no  bailiff  put  a  free- 
man to  his  oath  without  suit,  is  to  be  understood  in 
this  manner,  That  no  justice,  no  minister  of  the  king, 
nor  other  steward  nor  bailiff  have  power  to  make  a  free- 
man make  oath  without  the  king's  command,  nor  re- 


Ch.  v.,  Sc.  2.]     DEFECTS  OF  THE  CHARTER.  263 

ceivp  any  plaint  without  witnesses  present  who  testify 
the  phiint  to  ho  true. 

The  point  where  the  king  granteth  that  he  will  not 
disseise,  nor  imprison,  nor  destroy,  but  by  lawful  judg- 
ment, which  overthrows  the  statute  of  merchants,  and 
other  statutes,  is  to  \)c  interpreted  thus,  that  none  be 
arrested,  if  not  by  warrant  grounded  upon  a  personal 
action,  for  if  the  action  be  venial,  no  imprisonment  is 
justifiable,  if  not  for  default  of  main-pernors.  And  so 
it  appeareth  that  none  is  imprisonable  for  debt.  And 
if  any  statute  be  made  repugnant  to  this  point,  either 
for  the  king's  debt,  or  for  the  debt  of  any  other,  it  is 
not  to  be  kept.  That  (none  be  outlawed)  is  to  be  meant, 
if  not  for  mortal  felony,  from  which  one  is  saved  by 
the  oath  of  neighbours,  ex  officio,  as  it  is  the  use  in 
Eyres ;  and  therefore  that  destroyeth  the  statute  of  out- 
lawry of  a  man  for  arrearages  of  account,  and  all  other 
the  like  statutes ;  and  that  which  is  said,  that  none  be 
exiled  nor  destroyed,  is  to  be  interpreted  in  this  man- 
ner, that  every  one  have  an  action  to  appeal  all  persons, 
all  suitors,  all  assessors  who  destroy  men  against  the 
right  course,  and  against  the  rules  of  law. 

On  the  other  part,  where  the  king  forbiddeth  that 
none  be  disseised  of  his  freehold,  of  his  liberties,  or  of 
his  free  customs,  is  thus  to  be  understood.  That  one 
shall  recover  by  assise  of  novel  disseisin  every  manner 
of  freehold,  and  all  manner  of  possession  real  of  lands, 
or  of  franchises  whereout  one  is  cast,  if  it  l)e  not  by  law- 


264  DEFECTS  OF  THE  CHARTER.     [Ch.  V.,  Sc.  2. 

fill  judgment;  and  these  words,  (if  it  be  not  by  lawful 
judgment)  refer  to  all  the  words  of  this  statute. 

The  point  which  the  king  grants  to  the  people,  thait 
he  will  sell  no  right,  or  hurt  nor  delay  justice,  is  mis- 
used by  the  chancellor,  who  sells  the  remedial  writs, 
and  calls  them  writs  of  grace,  and  by  the  chancellor  of 
the  Exchequer  who  denieth  acquittances  of  payments 
made  to  the  king  under  green  wax,  and  all  those  who  de- 
lay right  judgment  or  other  right. 

The  point  concerning  leave  for  the  staying  of  mer- 
chants, aliens,  is  so  to  be  understood,  that  it  be  not 
prejudicial  to  the  towns,  nor  to  the  merchants  of  Eng- 
land,  and  that  they  be  sworn  to  the  king  if  they  stay 
longer  than  forty  days. 

The  point  which  forbiddeth  that  none  alien  his  land 
in  prejudice  of  the  lord  of  the  fee,  is  to  be  interpreted 
in  this  manner,  that  no  tenant  alien  the  fee  of  his  lord 
without  his  consent,  or  to  hold  in  chief  of  the  lord  with- 
out increase  of  new  service. 

The  point  of  the  custody  of  abbies,  and  of  religious 
places  when  they  fall,  is  thus  to  be  understood,  that 
every  lord  have  the  keeping  of  his  fee  during  the  va- 
cation. 

The  point  that  none  shall  be  taken  or  imprisoned 
upon  the  appeal  of  any  woman,  for  the  death  of  any 
other  than  of  her  husband,  is  to  be  meant  of  such  a 
woman  which  the  husband  last  held  for  his  Avife,  if  in 
case  there  be  many  wives  alivCo 


Ch.  v.,  Sc.  3. J  STATUTE  OF  MERTON.  265 

The  points  concerning  sheriifs  turns  and  views  of 
frank-pledges  are  disused  tliree  ways ;  the  first  that 
sheriffs,  bailiffs,  and  stewards  take  extortion  of  fines,  in 
that  they  make  the  people  to  fine  for  what  they  are  not 
occasioned  which  they  call  for  beaupleader.  The  sec- 
ond, that  they  amerce  the  People  for  presentments  upon 
personal  actions.  The  third  is,  that  they  charge  the 
jurors  with  articles  touching  trespass  done  by  neigh- 
bour to  neighbour,  or  of  tenant,  or  of  other  lord  than 
to  the  king. 

The  point  which  forbiddeth  religious  persons  to  pur- 
chase lands,  overthroweth  the  statute  afterwards  made 
at  Westminster  of  the  same,  for  as  much  as  the  action 
of  the  chief  lord  is  limited  in  so  short  a  time,  to  hasten 
the  king's  action  in  prejudice  of  the  lords  of  the  fee. 

The  last  point  is  of  such  virtue  and  of  such  mean- 
ing, as  that  the  king  hath  the  cognizance  of  trespasses 
done  in  such  manner,  as  that  the  fee-tenants  have  their 
courts,  and  the  cognisance  of  trespasses  done  within 
their  manors,  and  also  as  well  of  real  actions  and  Per- 
sonals, as  of  mixt. 


Sect.  3. 

Articles  upon  the  statute  of  Merton. 

Some   points   are   reproveahle    amongst   the   statutes 
made   at  Merton   after  the  Great  Charter  made,   and 


266  STATUTE  OF  MERTON.  [Ch.  V.,  Sc.  3. 

namely  the  point  of  redisseisins.  Since  the  law  doth 
not  attaint  any  trespasser  by  enquest  of  office,  and  be- 
cause pleas  may  perhaps  avail  the  tenants,  and  should 
be  by  law  allowable,  assizes  lie  to  the  example  of  novel 
disseisin ;  and  where  it  is  said,  that  redisseisors  be  ar- 
rested and  kept  in  prison,  and  afterwards  that  they  be 
released  is  but  an  abuse  of  the  law,  which  requireth 
that  every  one  who  is  attainted  of  a  personal  trespass 
be  punished  by  a  corporal  punishment,  if  he  cannot  ran- 
som it  bv  monev ;  and  that  which  is  said  of  this  statute 
is  to  be  understood  of  all  statutes  made  after  the  Great 
Charter,  made  in  the  time  of  king  Hen.  I.  for  it  is  not 
justice  that  he  should  be  punished  for  one  fault  with 
corporal  punishment,  as  imprisonment  or  other,  and 
further  by  a  pecuniary  pain,  Of  by  ransom ;  for  ransom 
is  nothing  but  a  buying  out  the  corporal  punishment. 

The  point  of  improvements  of  wastes  is  reproveable 
as  being  too  general,  for  it  ought  to  distinguish  of  com- 
mons; for  in  some  places  the  commoners  are  enfeoffed 
in  such  manner  that  the  whole  common  is  only  in  the 
tenants,  so  that  the  lords  have  nothing  but  the  soil,  and 
in  such  case  that  statute  is  prejudicial  to  the  common- 
ers, and  repugnant  to  the  Great  Charter,  which  willeth 
that  none  be  cast  out  of  his  freehold,  nor  the  appurte- 
nances wnthout  lawful  judgment. 

The  point  of  rape  of  marriages  is  reproveable,  in  as 
much  that  it  hath  an  exception  of  persons  of  laymen, 


Ch.  v.,  Sc.  4.]        STATUTE  OT  MARLBKIDGE.  267 

and  of  clerks,  for  there  is  no  more  law  that  a  clerk 
should  offend  without  punishment  than  a  layman. 

Other  points  arc  repugnable ;  if  the  tenant  do  dam- 
age to  his  lord,  or  e  contra,  for  they  are  not  punishable 
according  to  the  statute,  but  they  are  bound  by  their 
homage  and  fealty  betwixt  them,  as  it  is  before  said 
amongst  the  judginents  of  defaults. 

The  points  of  making  attornies  in  suits  at  hundreds, 
is  to  be  understood  in  this  manner ;  that  although  a 
suitor  l)y  this  statute  may  make  an  attorney  for  him  to 
save  his  default,  yet  none  can  give  judgment  by  at- 
torney ;  nor  is  a  woman  named  in  this  statute,  because 
that  no  judgment  is  to  be  given  by  a  woman. 


Sect.  4. 
Of  the  statutes  of  Maidbridge. 

Some  points  of  the  statutes  of  Marlebridge  arc  re- 
proveable,  and  namely  the  first  five  points,  because  that 
every  personal  trespass  is  punishable  by  a  corporal  pun- 
ishment, if  the  trespass  ho  not  l)onght  in  l)v  ransom 
according  to  the  quantity  thereof. 

The  chapter  which  commandeth  the  Great  Charter 
to  be  kept  in  all  points  is  defective  for  want  of  addi- 
tion of  punishment,  and  it  seems  cross  to  make  consti- 
tutions not  holden. 


268  STATUTES  OF  MARLBRIDGE.         [Ch.  V.,  Sc.  4. 

The  Chapters  remedials  of  lords  of  fees  is  reproveable 
in  the  mitigation  of  punishment :  for  all  those  who  do 
defraud  the  law,  are  punishable  by  corporal  punish- 
ment, and  not  by  a  simple  amercement. 

The  point  of  proclamation  of  wards  is  reproveable^ 
as  that  which  is  founded  upon  error,  as  it  appeareth  in 
the  chapter  of  defaults. 

The  chapter  of  redisseisors  is  reproveable,  for  that 
no  special  command  ought  to  exceed  common  right,  nor 
any  pain  of  imprisonment  is  judgeable  but  for  a  wrong- 
ful imprisonment. 

The  chapter  of  days  in  dower  is  reproveable,  since 
the  law  hasteneth  right  more  in  the  king's  court  than 
elsewhere. 

The  chapters  following  of  attachments  and  distresses 
are  reproveable,  for  in  pleas  of  attachments  no  essoin 
is  allowable  for  the  defendants,  nor  any  such  order  of 
distresses  is  to  be  holden  according  to  law. 

The  chapter  which  forbiddeth  that  none  make  his. 
tenants  jurors  is  reproveable,  because  that  no  punish- 
ment is  therein  ordained,  and  because  it  hath  no  exce]> 
tion  ;  for  there  are  many  cases  where  the  people  ought 
to  be  jurors,  though  they  come  not  by  the  king's  com- 
mand, as  before  justices  of  forests,  before  coroners,  and 
before  escheaters,  and  as  in  courts  of  sheriffs,  and  views 
of  frank  pledges,  and  as  affeerers,  and  at  gaol  deliveries. 

The  chapter  which  commandeth  the  arresting  of  those 
who  are  bound  to  account  is  reproveable,  since  the  ac- 


Ch.  v.,  Sc.  5.]  ARTICLES,  ETC.  209 

tion  is  mixt,  and  requirctli  summons,  and  not  personal 
arrests. 

The  chapter  of  wasters  of  farms  is  reproveal)le,  for 
waste  is  a  personal  trespass,  and  requireth  a  personal 
punishment,  and  not  a  simple  amercement. 


Sect.  5. 
Articles  upon  the  statute  of  Westminster  the  first. 

Many  chapters  are  reproveable  of  the  statute  of  West- 
minster. For  the  points  touching  religious  persons,  are 
matter  to  gain  monies,  and  a  purchase  upon  a  founda- 
tion of  covetousness,  more  than  for  their  advantage. 

The  chapter  of  clerks  found  guilty  of  felony,  is  re- 
proveable, for  want  of  addition  of  punishment,  these 
■clerks  are  not  to  be  delivered  to  ordinaries,  but  at  the 
pleasure  of  the  king,  and  of  his  justices. 

The  chapter  of  wreck  is  reproveable,  in  as  much  as 
the  finder  is  forejudged  by  the  statute  to  have  part 
thereof,  whereas  he  ought  to  have  part  of  the  profit,  and 
so  it  is  reproveable,  as  to  the  awarding  of  the  punish- 
ment. 

Of  the  points  of  amercements  is  before  spoken  in  the 
Great  Charter. 

The  point  of  takings  of  distress  is  much  reproveable, 
as  before  is  said.     Cap.  9. 

The  chapter  concerning  pursuing  of  felons  to  main- 


270  ARTICLES  UPON  THE  STATUTE     [Ch.  V.,  Sc  5. 

tain  the  peace  is  reproveable  in  the  punishment,  for  he 
is  consenting  to  a  felon  who  doth  not  apprehend  him 
when  he  may. 

In  thfe  same  manner  is  it  of  the  chapter  of  coroners, 
contained  in  the  articles  following. 

The  point  of  election  of  coroners  was  not  needful  to 
have  been  ordained,  for  it  behoveth  more  the  electors 
to  have  wise  and  loval  coroners  than  to  the  king,  and  it 
had  better  have  been  enacted,  that  the  coroners  do  pre- 
sent the  points  of  their  office  under  the  seals  of  the 
jurors,  than  sheriffs  should  make  counter  parts  of  the 
rolls. 

The  point  of  enquest  of  odio  et  atla  is  reproveable, 
for  London  and  other  places  in  liberties  where  there  are 
no  rights.      Cap.  12. 

The  point  of  ])ntting  people  found  guilty  of  felony, 
who  will  not  put  themselves  upon  the  country,  to  pen- 
ance, it  is  out  of  use  that  one  kill  them,  without  having 
regard  to  the  conditions  of  the  persons,  and  therein  it  is 
reproveable,  since  one  may  perhaps  help  and  acquit 
himself  otherwise  than  by  his  country,  and  in  as  much 
as  none  is  to  be  put  to  penance  before  he  is  attainted 
of  the  offence  for  which  he  ought  to  be  pained. 

The  ordinances  of  punishment  of  long  imprisonment 
are  to  be  reprehended,  as  before  is  said. 

The  point  of  the  order  of  outlawry  of  the  principals 
before  the  accessaries  is  no  statute,  but  a  revocation  of 
error. 


Ch.  v.,  Sc.  5.]     OF  WESTMINSTER  THE  FIRST.  271 

The  point  of  replevisals  is  reproveable,  according  as 
it  is  said  of  actions ;  the  punishment  of  long  imprison- 
ment contain  error  as  is  said  before. 

The  punishment  of  heirs  males  married,  as  against 
the  king,  without  the  consent  of  their  lords,  betwixt  14 
years  and  21  years  is  reproveable,  for  then  the  king 
should  have  amends  for  that,  for  which  he  hath  not  any 
personal  suit  for  the  amends. 

The  point  of  heirs  females  containeth  error,  as  ap- 
peareth  in  the  reprehension  of  the  point  of  marriages  in 
the  Great  Charter. 

The  point  of  tortious  distresses  ought  to  contain  the 
punishment  for  the  robbery. 

The  punishment  of  ministers,  disseisors,  by  colour 
of  their  office  is  reproveable,  for  the  smallness  of  it,  as 
appeareth  amongst  the  judgments. 

The  point  which  forbiddeth  sheriffs,  that  they  take 
no  rewards  is  reproveable,  in  as  much  as  the  king  taketh 
of  them,  and  they  take  nothing  of  the  king. 

The  point  of  fines  of  clerks,  and  the  officers  of  justices 
in  Eyre  is  reproveable,  for  the  common  grievance  of  the 
people  without  taking  of  profit. 

The  point  of  imprisonment  are  reproveable  for  the 
reasons  aforesaid,  and  the  point  of  tolls  for  the  pun- 
ishment of  imprisonment,  and  because  the  tolls  are  not 
established  certain. 

The  point  which  willeth  that  those  who  dis-use  mar- 
riages, should  lose  them,  was  not  needful  to  have  been 


272  ARTICLES  UPON  THE  STATUTE     [Ch.  V.,  Sc.  5. 

made,  for  the  law  is,  that  he  shall  lose  his  franchise  who 
iiseth  it  not. 

The  point  of  receivers  of  the  king's  monies,  and  not 
rendering  the  same  is  reproveable,  for  the  smallness 
of  the  punishment,  according  to  that  which  appeareth 
before. 

The  errors  of  taking  of  carriages  and  other  goods_, 
appeareth  sufficiently  by  the  reasons  before. 

The  point  which  forbiddeth  judgment  to  be  given 
by  strangers  in  counties  is  reproveable,  for  no  judgment 
given  by  another  than  an  ordinary  judge  assigned  is 
to  hold. 

The  point  which  maketh  mention  of  robbery  or  dis- 
seisins is  reproveable,  for  all  those  are  to  be  seised  upon 
whom  the  jurors  indict  of  robbery,  according  to  the  ex- 
ample of  thieves  and  other  felons. 

The  point  of  attaint  is  reproveable,  for  it  should  not 
extend  to  one  case,  but  it  ought  to  comprehend  all  oaths 
taken  by  twelve  men,  if  one  of  the  parties  complain 
thereof. 

The  point  of  limitations  of  actions  is  reproveable,  for 
the  reasons  in  the  chapter  given  upon  the  same  matter. 

The  point  which  forbiddeth  falsities  and  abuses  used 
in  courts  before  this  time  to  false  judges,  who  used  not 
the  law  bv  sufferance  of  falsities. 

The  point  of  champions  is  reproveable,  for  no  cham- 
pion is  to  be  receiveable  as  a  witness. 

The  point  of  not  allowing  essoins  in  assises  after  ap- 


■Ch.  v.,  Sc.  5. J     OF  WESTIVIINSTER  THE  FIRST.  273 

pearanee,  is  reproveable  by  the  assise  of  Novel  disseisin, 
where  no  essoin  is  allowable  for  the  tenants,  no  more 
before  appearance  than  after,  nor  in  no  other  personal 
action. 

The  other  points  of  essoins  are  reproveable,  for  no 
false  cause  of  essoin  ought  to  advantage  any  man. 

The  point  of  delays  in  pleas  of  attachment  is  reprove- 
able in  many  points,  according  as  appeareth  in  the  chap- 
ter of  defaults. 

The  point  to  plead  upon  the  surcharge  falloth  in 
prejudice  of  sheriffs,  and  of  lords  of  fees,  and  of  liber- 
ties;  and  although  the  two  points  of  disseisins,  that 
is  to  say,  that  every  one  may  avoid  the  dam- 
ages in  the  point  of  personal  trespass  done  to  his 
ancestors,  in  as  much  as  his  action  lieth,  of  what  age 
;soever  the  parties  be,  yet  is  the  first  reproveable,  for  as 
much  as  the  plaintiffs  have  no  recovery  for  the  damages 
done  to  their  ancestors,  nor  any  action,  but  to  have  resti- 
tution of  the  possession. 

The  other  point  is  reproveable  for  the  smallness  of 
the  punishment,  but  according  to  common  right  this 
punishment  should  have  time,  that  he  should  never  do 
homage  betwixt  them  for  the  lord's  forfeiture,  when  he 
beginneth  to  disinherit  his  tenant  contrary  to  the  rio-ht 
of  homage. 

The  prayer  of  the  king  is  reproveable,  because  he 
ought  to  ask  nothing  contrary  to  law,  lint  it  is  the  prayer 
of  the  justices  who  desire  always  to  have  much  to  do 
l8 


274  ARTICLES  UPON  THE  STATUTE     [Ch.  V.,  Sc.  5. 

The  point  that  if  he  who  is  vouched  to  warranty 
ought  not  to  warrant,  although  he  be  bounden  by  the 
deed  of  his  ancestor  whose  heir  he  is,  in  case  he  alledge 
that  nothing  descended  to  him  from  that  ancestor  by 
whose  deed  he  is  vouched,  is  reproveable,  for  according 
to  the  old  law,  lands  remained  liable  to  the  debt,  of  those 
who  acknowledged  it,  to  whose  hands  soever  the  lands 
afterwards  came. 

In  the  same  manner  it  used  to  be  in  all  other  con- 
tracts, where  the  contracts  were  adjudged  or  granted; 
and  although  nothing  descended  to  the  heir,  for  that 
he  lost  not  the  tenements  for  want  of  acquittance,  and 
if  he  who  bound  himself  to  warranty  would  not  war- 
rant the  land,  nor  vouch  over,  it  appeareth  thereby  that 
the  ancestor  was  tenant  by  a  naughty  title,  and  that  he 
was  possessor  thereof  by  an  ill  way;  and  if  the  heir 
had  nothing  whereby  to  discharge  him,  the  tenements 
bound  to  warranty  should  be  recovered.  And  if  the 
heir  had  nothing  whereby  to  discharge,  nor  no  land 
is  found  bound  to  the  warranty,  if  the  purchaser  lost 
his  purchase,  it  Avas  at  his  oavu  peril,  and  accounted  his 
own  folly,  the  better  at  any  other  time  to  look  to  his 
assurance.  : 


Ch.  v.,  Sc.  6. J     OF  WESTMINSTER  THE  SECOND.  275 

Sect.  G. 
Articles  upon  the  statute  of  Westminster  2. 

That  which  is  said  of  the  statute  of  Westminster 
2,  which  faileth  in  many  cases  is  now  to  be  under- 
stood, for  against  all  trespasses  is  the  law  made,  al- 
though it  be  disused,  or  controuled  bj  those  who  know 
not  the  law. 

And  the  three  first  chapters  are  not  statutes,  but  are 
the  revocations  of  the  errors  of  negligent  judges,  for 
the  law  permits  not  that  a  man  make  a  better  estate  to 
another  than  himself  hath,  but  requireth  that  every 
lawful  contract  be  made  according  to  the  wills  of  the 
speakers ;  and  that  which  is  in  the  statute,  that  if  a 
fine  be  levied  in  deceit  of  right,  that  the  same  be  null 
is  reproveable ;  but  it  might  have  been  better  said,  that 
for  fine,  that  no  man  be  barred  of  his  right,  for  the 
fine  levied  cannot  be  rightly  said  null,  l)nt  it  holds  in 
force,  and  barreth  at  the  least  donor  of  his  action. 

The  point  of  distresses  doth  not  repeal  any  error,  but 
affirm  them,  as  before  appeareth  in  the  second  book. 

And  that  which  is  said  in  the  second  statute,  that 
suitors  in  counties  have  no  record,  is  but  abusion,  since 
every  lawful  testimony  is  a  record,  and  every  false  tes- 
timony is  a  lye;  and  as  lawful  may  other  people  testify 
as  the  justices  assigned.     Is  not  the  same  writ  abused, 


276  A RTICLES  UPON  THE  STATUTE     [Ch.  V.,  Sc.  6. 

to  grant  to  counties  records  in  outlawries,  pledges,  main- 
prises,  battles,  grand  assises,  and  other  cases,  and  not 
other  points?  and  to  deny  that  the  sheriffs  or  lord  of 
the  fee,  or  other  to  whom  the  king  sendeth  his  writ, 
hath  not  as  well  record  of  process  before  him,  as  those 
whom  they  call  justices,  is  but  error. 

And  as  to  the  causes  of  writs  of  pains  is  suffered  great 
error,  that  that  which  is  not  warranted  in  the  accessory, 
that  he  may  in  the  principal,  since  the 

law  permits  that  none  be  aided  by  a  lye  or  a  vicious 
writ. 

Of  the  other  side,  because  there  is  more  realty  in 
the  statute  than  personalty,  as  more  attachments  are 
awarded  in  personal  actions  than  in  mixt  and  reals. 

The  point  of  mesnes  is  reproveable,  as  to  the  procla- 
mation, and  as  to  the  non-acquittance  of  those  who  hold 
by  less  service  than  the  mesnes,  for  be  it  that  B.  hold 
one  hundred  pounds  lands  of  D.  by  the  service 
of  twenty  pounds  per  annum,  and  the  same  B.  give  the 
moiety  thereof  in  frankalmoigne,  or  frank-marriage,  or 
to  hold  by  the  service  of  a  rose,  to  C.  if  it  happen  that 
the  same  B.  forfeited  what  he  hath,  by  this  statute  no 
remedy  is  ordained  for  C.  who  was  purchaser  from  B, 
and  therefore  the  old  course  is  to  be  holden  which  is 
said  before  in  judgments. 

The  remedial  statute  of  the  right  of  the  wife  lost 
by  the  default  of  the  husband  is  reproveable,  for  the 
old  law  was,  that  a  woman  after  the  death  of  her  bus- 


Ch.  v.,  Sc.  C]      of  WESTMINSTER  THE  SECOND.  277 

band  should  repleve  her  inheritance  or  purchase  so  lost, 
sinnmoning  the  tenants,  for  a  cape  is  not,  but  a  distress 
and  ejection  of  seisin  saving  every  right;  and  it  is  law- 
ful for  one  of  the  tenants  in  common  to  defend  his  right 
where  he  is  damnified  by  the  negligence  or  the  non- 
ability  of  his  partner.  In  the  same  manner  may  a 
woman  according  to  law  in  the  right  of  her  husband ; 
neither  doth  the  law  give  to  widows  action  to  demand 
dower  in  the  cases  named  in  the  statute,  but  in  all  cases 
the  law  enables  her  to  be  received  by  lawful  reversing 
of  the  judgment. 

And  that  which  is  contained  that  tenants  may  vouch 
to  warrant}',  is  but  abuse ;  how  holdeth  voucher  place 
where  a  writ  lieth  not,  yet  it  is  understood  with  a  sav- 
ing, that  no  jurisdiction  of  a  judge  assigned  extend  to 
other  persons  than  those  who  are  named  in  the  writ, 
and  that  none  shall  vouch  more  than  in  the  same  writ 
are  named,  by  writ  of  Replegiare,  and  therefore  are 
warranties  attainable  and  determinable  by  writs. 

The  statute  following,  which  ordaineth  new  writs 
remedials  after  defaults,  is  prejudicial  to  lords  of  fees, 
who  lose  the  advantages  of  their  courts,  because  that 
writs  of  right  are  forbidden  in  such  cases  where  they 
wont  to  be  used. 

Presentments  to  churches  ought  not  to  be  but  in  the 
names  of  those,  to  whom  the  mere  right  of  the  advowson 
doth  belong,  according  as  is  said  before  in  contracts; 
and  it  is  error  and  abusion  of  law  to  endow  women  of 


278  ARTICLES  UPON  THE  STATUTE     [Ch.  V.,  Sc.  6. 

advowsons,  or  to  lease  them  to  farm,  or  for  the  term  of 
another's  life,  or  in  frank-marriage,  or  in  mortgage,  or 
in  fee-tail,  or  otherwise  than  in  fee-simple. 

And  those  who  receive  clerks  presented  to  churches, 
in  prejudice  of  those  to  whom  the  mere  right  in  fee  doth 
appertain,  are  bound  to  make  restitution  of  the  dam- 
ages, and  those  who  have  recovered  to  jurors,  by  whom 
they  were  certified  of  the  right  of  the  personage;  and 
so  it  appeareth  that  the  punishment  lieth  more  against 
the  bishops  than  the  presentors. 

And  that  which  enacteth  long  imprisonment  for  a 
punishment,  is  but  abuse;  since  none  is  imprisonable 
if  not  for  a  wrongful  imprisonment. 

The  statute  of  warranties  is  but  a  revocation  of  error 
used  against  law. 

The  statute  of  admeasurement  is  reproveable  in  many 
points,  as  to  the  proclamations,  since  admeasurement 
and  surcharge  are  to  be  by  jurors. 

The  statute  of  mesnes  is  reproveable  in  many  points, 
as  it  appeareth  in  the  chapter  of  distresses,  contracts, 
and  defaults,  and  the  same  appeareth  in  the  end  of  the 
statute  where  the  plaintiffs  know  not  a  set  fine. 

The  statute  of  suspension  of  writs  in  Eyres  is  re- 
proveable, as  repugnant  to  the  Great  Charter,  which 
saith,  we  will  sell  no  right,  nor  detain  it,  and  where- 
fore are  writs  rebuttable  from  hearing,  but  for  the  mul- 
titude of  writs  which  are,  and  for  the  small  number 
of  justices  the  right  of  many  perish. 


Ch.  v.,  Sc.  6. J  OF  WESTMINSTER.  279 

The  statute  of  obligees  in  account  is  reproveable  in 
many  points,  one  as  the  exception  to  the  persons,  for 
the  masters  is  ordained  recovery,  and  to  servants  not, 
when  auditors  are  assigned  without  the  consent  of  the 
servant. 

The  other,  that  the  auditors  are  not  tied  to  allow  any 
thing  but  at  their  pleasure  without  punishment. 

Another,  that  the  recovery  is  ordained  by  detinue  of 
the  servants,  and  not  against  the  surety,  nor  the  goods. 

Another,  that  the  lords  are  not  to  be  attested  accord- 
ing as  of  the  servants. 

Another,  that  the  wickedness  of  auditors  remained 
unpunished. 

Another,  of  outlawry,  for  none  is  to  be  imprisoned 
if  not  for  a  tortious  imprisonment. 

The  statute  of  appeals  is  reproveable  in  two  points, 
one  in  the  specialty  of  the  corporal  punishment,  and  of 
the  plurality  punishments,  since  the  redemption  by  a 
pecuniary  pain  is  but  the  buying  out  of  the  corporal 
punishment. 

The  other  to  have  jurisdiction  against  the  abettors 
without  original  writ. 

The  statutes  of  waste  are  founded  upon  error,  since 
waste  is  a  personal  trespass,  and  requireth  other  man- 
ner of  processes,  as  appeareth  in  the  chapter  of  de- 
faults; and  to  defend  a  personal  trespass  by  writ  is  but 
a  vain  labour. 

The  statute  of  not  allowing  a  false  cause  in  the  es- 


280  ARTICLES  UPON  THE  STATUTE     [Ch.  V.,  Sc.  6, 

soin  de  malo  led  I  is  defective,  for  in  no  essoin  for  no 
party  is  any  false  cause,  or  any  falsity  to  be  permitted, 
nor  ought  to  be  profitable  to  any. 

The  statute  of  debt  and  damages  recovered  is  defec- 
tive, for  not  only  should  such  remedy  be  in  the  king's 
courts,  but  it  ought  to  comprehend  in  all  other  lay 
courts. 

The  statute  of  those  who  are  dead  without  wills  is 
defective,  for  it  ought  to  comprehend  felons  and  fugi- 
tives as  well  as  true  men ;  and  the  king,  and  all  others 
into  whose  hands  their  goods  come  as  well  as  ordinaries,, 
for  none  can  forfeit  the  right  of  another. 

The  statute  for  allowing  one  manner  of  exception  in 
the  like  actions  was  not  needful  to  have  been  made  if 
not  for  the  negligence  of  justices,  for  every  affirmative 
is  encounterable  with  his  negative  at  the  peril  of  the 
party. 

The  statute  of  detinue  of  service  is  a  novelty  danger- 
ous to  lords  of  fees,  as  appeareth  in  the  chapter  of  de- 
faults. 

The  chapter  of  making  new  writs  had  not  need  to 
have  been  made,  if  the  first  ordinances  of  writs  were 
observed. 

The  statute  to  have  remedy  by  assize  of  7wvel  dis- 
seisin is  reproveable,  for  as  much  as  it  comprehendeth 
'  not  lands  charged  with  villain  customs,  nor  lands  holden 
for  term  of  years. 

The  point  needeth  not  have  forljidden  false  excep- 


Ch.  v.,  Sc.  6. J     OF  WESTMINSTER  THE  SECOND.  281 

tions,  if  the  pleaders  held  themselves  to  the  points 
given  in  charge. 

And  as  to  the  point  of  imprisonment,  the  statute  is 
reproveable,  for  the  reasons  aforesaid,  and  also  as  to 
the  pain  of  double  damages,  for  the  law  giveth  a  man 
no  more  than  is  his  demand. 

And  that  which  appearetli  in  the  statute  of  false  ap- 
peals is  more  error  than  right  in  the  enacting  the  award 
of  amends  to  defendants,  whereas  it  is  not  to  the  plain- 
tiffs. 

And  as  to  the  writ  to  the  use  of  sheriffs  in  disseisin,  it 
is  no  statute,  but  it  is  a  thing  at  pleasure,  and  a  wrong. 

And  that  which  is  used  to  grant  damages  in  part,  or 
in  all  to  justices,  or  to  clerks,  or  to  ministers  or  others, 
should  be  forbidden,  as  a  usage  very  full  of  damage 
to  the  people. 

And  as  punishments  are  reproveable  in  novel  dis- 
seisins, so  are  they  in  the  statutes  of  disseisins,  corporal 
punishments  nevertheless  hold  in  such  personal  tres- 
passes, but  in  re-disseisins  more  than  in  disseisins. 

The  statute  which  forbiddeth  that  writs  of  Oyer  and 
Terminer  be  not  Jigirment  granted,  is  not  founded  upon 
any  law,  as  being  repugnant  to  the  words  of  the  Great 
Charter,  We  will  not  sell  or  delay  justice  to  any  man ; 
but  cometh  rather  from  the  temporal  judges,  who  cause 
the  same  for  their  advantages,  as  desiring  to  embrace 
all  ])leas. 

The  statute  of  caption  of  assises  thrice  in  the  year  is 


282  ARTICLES  UPON  THE  STATUTE    [Ch.  V.,  Sc.  6. 

reproveable,  as  to  the  adjournment  of  the  parties  out  of 
the  counties  before  the  justices  of  the  bench,  who  have 
no  jurisdiction  over  those  pleas,  since  the  commissions 
are  given  to  justices  assigned. 

And  as  to  take  juries  and  enquests  in  their  counties, 
so  the  statute  is  not  to  destroy  the  authors  and  endam- 
age the  people. 

The  statute  which  forbiddeth  justices  that  they  cause 
not  jurors  say,  but  their  advice  is  defective,  as  appear- 
eth  in  the  chapter  of  jurors. 

The  statute  of  exceptions  allowables  rebutted  by  jus- 
tices is  not  founded  upon  law,  as  appeareth  in  the  judg- 
ment of  false  justices,  but  is  when  it  is  in  no  part  fixt. 

The  statute  of  rape  is  reproveable,  for  none  can  or- 
dain by  statute  that  a  venial  punishment  be  turned  into 
a  mortal  without  the  consent  of  the  pope  or  the  em- 
peror. 

The  statute  that  the  king  hath  the  suit  in  rape,  or  in 
elopement  of  women  married,  is  reproveable,  for  none 
is  bounden  to  answer  to  the  king's  suit  if  not  by  appeal, 
or  by  indictment. 

And  that  which  is  contained  in  it,  that  women  should 
lose  their  dower  for  the  sin  of  adultery,  ought  also  to 
comprehend  all  adulterers,  who  claim  to  hold  the  in- 
heritances of  their  wives  by  the  curtesy  of  England,  so 
that  there  be  no  exception  of  persons. 

The  imprisonment  of  elopers  of  nuns  and  their  ran- 


Ch.  V.,Sc.  6.]  OF  WESTMINSTER.  283 

som  is  no  law,  but  is  an  error  in  a  double  manner,  as 
before  is  said  in  many  places. 

The  imprisonment  for  two  years  or  more,  ordained 
for  a  corporal  punishment  to  ravishers  of  marriages  is 
but  error;  for  no  corporal  punishment  ought  to  be  or- 
dained but  for  common  profit,  as  before  appeareth  of 
open  i^enances. 

And  that  which  is  ordained  of  proclamations  in  per- 
sonal actions  is  but  abuse  of  law,  as  it  is  said  in  the 
statute  of  moignes. 

The  statute  which  awardeth  ransom  is  reproveable, 
for  ransom  is  nothing  else  than  the  redemption  of  cor- 
poral punishment. 

The  statute  of  distresses  made  by  bailiffs  unknown  is 
distinguishable,  for  in  tortious  distresses  without  war- 
rant the  judgment  of  robbery  holdeth ;  and  by  warrant 
is  every  one  receivable,  whether  known  or  unknown. 

The  statute  of  jurors  is  reproveal)le,  for  the  law  wills 
that  the  plaintiffs  have  the  aid  of  the  courts  to  cause  the 
witnesses  to  ajipear,  whereby  they  may  the  more  law- 
fully help  themselves,  without  distinction  of  persons. 

And  that,  that  jurisdiction  is  granted  to  justices  as- 
signed to  Oyer  and  Terminer  plaints,  without  a  special 
commission,  is  but  abuse. 

The  statute  which  awardeth  that  writ  of  judgiuent 
be  made  without  warrant  of  original  writ,  is  nothing 
else  than  a  license  to  falsify  the  king's  seal. 

The  punishment  of  sheriffs  ill  answering  is  reprove- 


284  ARTICLES  UPON  THE  STATUTE     [Ch.  V.,  Sc.  6. 

able,  as  to  the  punishment ;  for  disinheritors  of  the  king 
offend  of  the  crime  of  majesty,  and  are  by  consequence 
punishable  by  death,  which  ought  not  to  be  in  such 
cases. 

And  as  to  issues  the  statute  is  reproveable,  for  no 
issues  are  awardable  but  after  defaults  in  actions  mixt, 
and  not  to  the  king's  use,  but  for  the  profits  of  the  plain- 
tiffs. 

The  defaults  made  of  the  statutes  of  clerks,  cryers, 
and  other  officers  of  the  court  are  but  idle,  because  thej 
are  not  kept  at  all. 

The  statute  that  cognizances  and  inrolments  which 
are  made  in  the  Chancery,  the  Exchequer,  and  before 
justices  be  established,  is  an  authority  of  great  ill;  for 
by  false  inrolments  might  every  one  in  authority  de- 
stroy those  he  pleased,  which  should  be  a  great  incon- 
veniency.  Again,  by  this  statute  authority  should  ac- 
crue to  authority  to  the  chancellor  and  others,  to  falsify 
the  king's  seal  by  writs,  to  give  judgment  without  orig- 
inal writs. 

And  therefore  note,  that  none  but  the  king  can  re- 
ceive attornies  in  the  king's  court,  nor  recognitions  be- 
twixt parties  without  warrants  of  original  writs. 

The  statute  of  improvements  of  wastes  and  commons 
of  pasture  is  reproveable,  and  distinguishable  according 
as  hath  been  said  before. 

The  statute  to  have  view  of  lands  is  but  a  wrongful 
delay  of  the  right  of  the  i^laintiffs ;  for  the  view  appear- 


€h.  v.,  Sc.  G.J     OF  WESTMINSTER  THE  SECOND.  285 

€th  sufficient  by  the  certificate  of  the  summons,  upon 
Avhat  tenements  the  tenants  are  summoned. 

The  statute  which  forbiddeth  that  no  officer  of  the 
court  take  any  presentment  of  any  church,  nor  other 
thing  which  is  depending  in  plea,  or  in  debate,  is  not 
kept. 

Reprehensions  upon  the  statute  of  Gloucester,  16  Ed.  1. 

The  statutes  to  recover  damages  in  pleas  of  jxjsses- 
sion  enacted  at  Gloucester  or  elsewhere,  and  of  the  hor- 
rible damages  in  waste,  are  reproveable,  for  that  the 
law  giveth  one  no  more  than  is  his  demand,  and  there- 
fore it  behoveth  that  the  damages  be  mentioned  in  the 
writs,  if  damages  shall  be  awarded;  for  a  judge  cannot 
exceed  the  points  of  his  commission,  and  so  it  would  be 
needful  to  use  it  according  to  the  first  ordinance  of 
Avrits. 

And  the  statute  of  tenements  aliened  of  lands  in  pre- 
judice of  others  is  reproveable,  for  the  remedy  ought 
to  be  such  as  of  guardians  alieners,  to  the  desinhcrison 
of  the  right  heirs. 

The  statute  of  trespass  pleaded  in  counties  is  reprove- 
able for  want  of  distinction,  for  small  trespasses,  debts, 
covenants  broken,  and  such  other  kinds  not  exceeding 
forty  shillings.  Suitors  have  power  to  hear  and  de- 
termine without  writs,  by  warrant  of  jurisdiction  ordi- 
nary, and  by  writs  granted  afterwards ;  for  sheriffs  have 


286  ARTICLES  UPON  THE  STATUTE     [Ch.  V..  Sc.  7. 

more  jurisdiction  in  their  writs  vicontiel  than  jus- 
tices of  the  bench  by  the  Pone. 

And  as  to  the  recovery  of  twenty  shillings  or  more, 
in  right  of  essoin  of  the  king's  service  not  warranted, 
the  statute  is  reproveable,  for  that  essoin  might  be  cast 
Avhere  the  defendant  would  make  default  by  the  ad- 
verse party,  and  so  he  should  have  advantage  of  his 
malice. 

The  statute  which  forbiddeth  the  abatement  of  ap- 
peals is  not  observed. 

The  statute  which  awardeth  an  innocent  man  to  re- 
main in  prison,  or  to  have  no  manner  of  punishment  for 
necessary  manslaughter,  or  by  mischance,  where  no  of- 
fence is  found,  is  but  an  abusion. 

The  statutes  making  mention  of  London  ought  to  ex- 
tend commonly  throughout  the  whole  realm. 


Sect.  7, 


The  reprehensions  of  Circumspecte  agatis,  Ann. 

13  Ed.  1. 

The  first  point  which  saith,  that  the  king's  prohibi- 
tion holds  not  in  correction  of  mortal  offences,  where 
pecuniary  pain  is  enjoinable  by  ordinaries,  is  founded 
upon  open  error,  and  usage  to  enjoin  a  pecuniary  pain 
for  a  mortal  offence,  notwithstanding  to  destroy  the 
king's  jurisdiction. 


Ch.  v.,  Sc.  7.]  OF  WESTMINSTER.  287 

The  other  points  to  compel  the  parishioners  by  cor- 
rections to  enclose  church-yards,  to  oifer,  to  give  mortu- 
aries, monies  for  confessions,  clialices,  lights,  holy  vest- 
ments, and  other  adornment  of  churches  are  more 
grounded  upon  interest  than  amendment  of  souls;  and 
note,  that  after  that  they  are  offered  to  God,  that  they 
are  so  spiritual  that  they  are  to  be  expended  bul  in 
ahns,  and  spiritually,  for  they  are  never  to  be  con- 
verted to  lay  uses. 

And  then  if  any  parishioner,  for  the  hurt  of  the  par- 
son of  the  church,  keepeth  back  his  tithes,  or  stcaleth 
them  away,  or  doth  not  pay  them  duly  or  fully,  the 
same  is  not  punishable  by  a  pecuniary  pain,  but  by  a 
corporal  punishment. 

For  the  excommunicate  no  pecunial  pain  was  to  be 
for  restitution  or  satisfaction,  no  more  than  of  a  Pagan 
or  a  jew,  and  if  they  do  demand  a  pecuniary  pain, 
there  the  king's  prohibition  lieth,  and  much  more  in 
the  demand  of  pensions,  or  of  damages  of  trespass,  or 
of  defamation ;  but  of  pleas  of  correction  where  one 
pleads  only  pro  salute  animce,  the  king's  prohibition 
lieth  not. 


Sect.  S. 

The  statute  of  merchants. 

The  new  statute  of  debts  is  contrary  to  law,  as  it 
appeareth   in  the  chapter  of  contracts;  for  every  im- 


288  ARTICLES,  ETC.  [Ch.  V.,  Sc.  7. 

prisonment  of  the  body  of  a  man  is  an  offence  if  not 
for  tortious  judgment,  and  the  law  will  not  suffer  any 
obligation,  or  vicious  contract  by  intermixture  of  of- 
fence, and  therefore  it  was  to  be  avoided  as  grounded 
upon  an  offence ;  for  no  honest  man  ought  to  agree  to 
such  a  contract  which  causeth  him  to  offend,  or  to  be 
punished. 

Again,  it  is  contrary  to  the  Great  Charter  which  en- 
acteth,  that  no  man  be  taken,  nor  imprisoned  if  not  by 
the  lawful  judgment  of  his  peers,  or  by  the  law  of  the 
land. 

Here  endeth  the  Mirour  of  Justices,  of  the  right  laws 
of  persons  according  to  the  ancient  usages  of  England. 

The  end  of  the  fifth  chapter,  and  of  the  whole  hook. 


FINIS. 


T  n  1 : 

DIYEESITY  OF  COUIITS 


AM)     IIIICIK 


JURISDICTIONS 


COMPILED    ANN.   21    HENRY    VIII.    IN    FRENCH,   TRANSLATED    INTO 

ENGLISH  ANN.    1040. 


BY 

W.  H.  /.  e.  AVILLIAM  HUGHES, 
of  Gray's  Inn,  Esq. 


77ie  Second  Edition,  corrected  and  pa<jed  as  the  former. 


AVASHINGTON.  D.  C. 

JOHN   BYRNE  &  CO. 

LAW    PUHLISHEKS    AXD    BOOKSELLERS 
1903 


THE  DIVERSITY  OF  COURTS,  ETC. 


It  is  to  be  nnderstood,  that  the  king  is  the  fountain 
of  justice,  and  to  that  purpose  ordaineth  judges,  that 
justice  be  administered  to  all  his  subjects. 

The  king  himself,  for  the  excellency  of  his  person, 
may  sit  and  give  judgment  in  all  causes  personal  or 
real,  betwixt  party  and  party,  but  he  cannot  sit  in  per- 
son in  judgment  in  any  cause  where  he  himself  is  party, 
or  where  the  things  of  his  crown  or  dignity  are  con- 
cerned ;  as  upon  an  indictment  of  treason,  or  upon  an 
appeal  of  murder  or  felony,  or  upon  an  action  brought 
by  himself  as  formedon  of  land,  of  which  the  right  is 
descended  to  him  from  a  collateral  ancestor,  or  in  an 
action  of  debt,  by  reason  of  the  affection  moving  him 
to  be  favourable  to  himself;  and  therefore  he  maketh 
his  judges  to  sit  and  hear  such  matters  in  difference,  and 
to  do  justice  to  the  parties. 

And  the  place  where  the  judges  sit  to  minister  jus- 
tice are  called  courts,  which  are  of  divers  kinds,  and  the 
judges  thereof  have  several  authority. 

291 


2<J2  DIVERSITY  OF  COURTS. 

Of  the  court  of  Marslialsea. 

And  first,  the  court  of  Marshalsea  is  an  ancient  court, 
:an(i  made  for  the  well  government  and  ordering  of  the 
king's  house,  for  the  preservation  of  the  king  and  his 
.servants;  and  this  court  hath  its  bounds  within  which 
it  hath  jurisdiction,  and  not  without. 

The  judges  of  this  court  are  the  steward  and  marshal 
of  the  king's  house,  for  in  them  under  the  king  is  the 
ordering  of  the  household,  etc. 

The  title  of  the  court  is,  Placita  coronoe,  Aula  Jiospitii 
domini  Regis  tent'  coram  seneschallo  ei  mareschallo 
hospitii  domini  Regis,  etc. 

And  this  court  hath  power  to  enquire  of  treason,  mur- 
der, felony,  an<i  to  take  appeals  of  them,  and  of  may- 
hem if  they  be  done  within  the  verge,  betwixt  persons 
who  are  of  the  king's  house. 

And  if  one  of  the  household  sueth  another  who  is 
not  of  the  household,  he  may  plead  to  the  jurisdiction 
of  the  court ;  and  if  they  will  not  allow  of  the  plea,  he 
shall  have  a  writ  of  error,  and  the  judgment  shall  be 
reversed  in  the  King's  Bench. 

And  if  one  of  the  household  sued  another  of  the 
household,  and  the  plaintiff  be  put  from  his  service  de- 
pending the  suit,  the  other  shall  shew  the  same  and 
abate  the  writ ;  but  quaere  if  it  be  so,  if  in  case  the  de- 
fendant be  removed  out  of  service,  etc. 

The  coroner   of  the   Marshalsea   shall   sit  with   the 


THE  KING'S  BENCH.  293 

coroner  of  the  country  upon  the  death  of  a  man,  and  if 
the  plea  may  be  determined  before  the  king  remove  out 
of  the  verge  it  shall  be,  otherwise  it  shall  be  at  the  com- 
mon law. 


The  King's  Bench. 

There  is  another  court  of  liigh  authority  called  the 
King's  Bench,  and  the  judges  of  that  court  have  author- 
ity to  enquire  of,  hear,  and  determine  pleas  and  things 
touching  the  crown ;  as  high  treason,  murder,  man- 
slaughter, robberies,  felonies  at  the  common  law ;  and 
by  statute  law,  mayhems,  trespasses,  burglaries,  and  all 
deceits  and  falsities  whatsoever;  but  thev  have  not  au- 
thority  to  hold  pleas  betwixt  party  and  party  by  orig- 
inal writ,  but  in  special  cases. 

They  have  power  to  proceed  in  and  determine  in- 
dictments, and  presentments  taken  within  any 
countv  within  the  realm  where  the  kind's  writ  runneth, 
if  it  be  certified  by  certiorari,  or  be  delivered 
under  tlie  hands  of  the  justices  of  the  peace,  or  other 
justices  before  whom  the  indictments  or  presentments 
1)0 ;  whether  it  be  of  treason,  felony,  forcible  entry,  riot, 
or  any  other  thing  against  the  peace;  and  they  have 
authority  to  reverse  judgments  given  in  the  Common 
Pleas,  by  a  writ  of  error,  or  before  justices  of  assise, 
and  in  lil)erties  and  francliisos,  l)ut  not  in  London;  for 
a  writ  of  error  of  a  judgment  given  before  the  sheriffs 


294  DIVERSITY  OF  COURTS. 

of  London  shall  be  reversed  before  the  mayor  in  the 
Hustings. 

And  erroneous  judgments  given  before  the  mayor  in 
London  shall  be  reversed  at  St.  Martins  before  special 
commissioners  assigned  to  that  purpose;  and  thereupon 
a  writ  of  error  shall  be  directed  to  the  mayor  to  have 
the  record  and  proceedings  thereof,  and  the  record  shall 
be  certified  by  the  recorder,  etc. 

And  it  is  said,  that  if  an  erroneous  judgment  be 
given  in  Ireland,  it  shall  be  reversed  in  the  King's 
Bench  by  a  writ  of  error,  for  that  in  Ireland  the  laws 
of  England  are  used. 

And  if  an  erroneous  judgment  be  given  in  the  cinque 
ports,  it  shall  be  reversed  in  the  King's  Bench,  and  the 
writ  shall  be  directed  to  the  warden  of  the  cinque  ports, 
and  he  shall  return  the  writ  and  the  record,  etc. 

The  king  may  have  a  formedon  in  the  King's  Bench, 
debt,  detinue,  and  every  other  action,  and  a  quare  im- 
pedit  at  his  pleasure.  And  a  common  person  may 
bring  an  action  of  trespass  quare  vi  et  armis  in  the 
King's  Bench,  and  actions  for  forging  of  false  deeds, 
maintenance,  conspiracy,  actions  of  deceit,  upon  the 
case,  or  supposing  any  falsity  and  deceit,  where  the 
king  shall  have  a  fine,  etc. 

And  note  that  there  are  some  actions  upon  the  case, 
which  shall  be  sued  in  the  King's  Bench,  and  some  not ; 
as  an  action  upon  the  case  against  one  supposing  that 
the  defendant  hath  sold  land  to  the  plaintiff  for  a  cer- 


THE  KING'S  BENCH.  295 

tain  sum  of  money,  and  tlint  he  covenanted  to  enfeoff 
him  by  such  a  day,  and  not  by  any  deed,  etc.,  or  to  build 
a  house  such  a  day,  and  did  not  do  it,  etc.,  such  actions 
shall  be  brought  in  the  same  court;  but  there  are  other 
actions  upon  the  case,  which  shall  not  be  brought  in  the 
King's  Bench ;  as  if  a  Horse  be  stolen  out  of  the  com- 
mon inn,  an  action  ujmhi  the  case  lieth  against  the 
hostler,  but  not  in  the  King's  Bench,  as  it  is  said.  And 
so  it  is  where  a  man  is  so  bounden  to  keep  his  fire,  that 
the  same  hurt  not  his  neighbours  houses,  etc. 

And  note,  that  the  chief  justice  of  the  King's  Bench 
is  made  by  writ,  and  not  by  patent,  and  it  is  to  this  ef- 
fect ;  Rex  diledo  et  fidel.  suo  I.  Fitz-James  Sal'tem. 
Quia  volumus  quod  vos  sitis  capital,  justiciar,  noster  ad 
placita  coram  nobis  tenenda  vobis  mandamus  (juod  of- 
ficio illi  intendatis;  but  he  shall  be  sworn  by  the  chan- 
celh^r  of  England  before  he  take  upon  him  his  office. 

The  other  justices  of  the  same  court  are  made  by 
patent,  viz.  by  these  words;  Constituimus,  etc.,  unum 
justiciar  nostr.  ad  placita  coram  nobis  tenenda,  habend. 
et  occupand.  officium  illud  quam  diu  nobis  placuerit. 

And  if  a  king  maketh  a  judge  to  hold  and  enjoy  the 
said  office  by  himself,  or  his  sufficient  deputy  for  life, 
the  grant  is  void  as  to  the  deputy,  and  if  the  grant  be 
to  him  and  his  assignees,  he  cannot  make  an  assignee, 
etc. 


296  DIVERSITY  OF  COURTS. 


The  Common  Pleas. 

And  note,  there  is  another  court  called  the  Common 
Pleas,  which  court  hath  jurisdiction  to  hold  Common 
Pleas,  as  well  personal  pleas  as  real,  or  any  other  prce- 
cipe  quod  reddant,  of  lands  or  tenements,  etc.,  of  debt, 
detinue,  account,  and  other  personal  actions ;  and  thej 
have  power  to  hold  plea  of  any  of  those  actions,  which 
may  be  brought  in  the  King's  Bench,  as  actions  of  main- 
tenance, conspiracy,  forgery  of  false  deeds,  and  actions, 
upon  the  case,  and  trespass  against  the  peace,  of  such 
actions  wherein  the  king  ought  to  have  a  fine,  and  also 
of  attaints;  but  they  have  not  power  to  hold  pleas  of 
appeals  of  murder,  rape,  felony,  mayhem,  nor  to  en- 
quire of  them  nor  of  riots. 

And  it  is  said,  that  one  may  sue  the  peace  against 
another,  before  the  justices  of  the  Common  Pleas,  and 
if  the  Party  be  in  the  hall,  or  in  the  Place,  or  within 
their  view,  they  may  send  the  warden  of  the  Fleet  to 
bring  the  Party  before  the  justices  to  find  sureties,  or 
else  commit  him  to  the  Fleet ;  and  the  reason  why  they 
may  so  do  is,  that  good  order,  and  the  peace  be  kept 
about  the  court;  but  the  justices  have  not  power  to 
award  process  to  the  sheriff  to  arrest  the  party  to  appear 
in  the  court  where  the  Common  Plea  is ;  but  it  is  other- 
wise of  the  King's  Bench,  as  it  is  said,  etc. 


THE  KING'S  BENCH.  297 

And  it  is  said,  that  the  justices  of  the  Common 
Pleas  have  jurisdiction  in  some  things  which  touch  the 
crown,  and  to  enquire  and  hohl  plea  of  some  felony, 
and  also  of  misprision,  and  of  deceit  done  within  the 
court,   and  within  the  record  thereof. 

And  if  one  imbezil  a  panel  after  the  enquesl  passed^ 
and  judgment  given  in  the  Common  Pleas,  by  wdiich 
the  judgment  is  reversable  by  error  for  want  of  that 
panel;  the  justices  of  the  Common  Pleas  have  power 
to  enquire  of  the  imbezilment  f)f  the  panel  by  twelve 
of  the  officers  and  attornies  of  the  same  court,  and  thev 
shall  be  sworn  before  the  justices  to  enquire  of  that 
default ;  and  if  thev  indict  the  imbezilers  thev  shall  be 
arraigned  thereupon,  and  shall  be  compelled  to  answer 
thereunto  as  other  felons,  etc.,  and  if  they  be  attainted 
they  shall  forfeit  their  goods  and  chattels,  tamen  qucere, 
etc. 

And  if  one  be  condemned  in  debt,  or  trespass  in  the 
Common  Pleas,  and  he  be  in  tlio  hall,  the  justices  at  the 
prayer  of  the  plaintiff  may  send  the  warden  of  the 
Fleet  to  bring  him  before  them  to  satisfy  the  party  the 
money,  or  otherwise  commit  him  to  the  Fleet. 

And  when  he  appeareth,  and  will  deny  that  he  is  the 
same  person,  then  qurrre  what  shall  be  done,  if  the 
justices  may  commit  him  to  the  Fleet  or  not?  And 
some  say  not,  for  that  they  know  him  not  as  judges,  but 
as  other  men  liy  information  of  the  parties,  and  the 
plaintiff  cannot  maintain  that  he  is  the  same  person, 


298  DIVERSITY  OF  COURTS. 

because  he  eometli  not  in  but  by  information  of  the 
party  plaintiff,  and  not  by  process  of  law ;  quwre  what 
is  to  be  done  in  that  case  ? 

And  see  another  difference  betwixt  the  judges  of  the 
one  Bench  and  of  the  other;  for  it  is  said,  that  if  the 
judges  of  the  King's  Bench  do  award  process  in  a  forme- 
don,  a  writ  of  right,  or  execution  of  land  recovered  in 
value,  the  sheriff  ought  to  execute  the  writs  although 
they  have  not  any  jurisdiction  therein.  But  if  the 
judges  of  the  Common  Pleas  will  grant  process  of 
treason,  etc.,  out  of  their  place,  the  sheriff  ought  not  to 
execute  the  process,  for  that  authority  is  only  of  Com- 
mon Pleas,  etc. 

The  chief  justice  of  the  Common  Pleas  is  made  by 
patent,  viz.  by  these  words,  Constituimus  ipsum  capital, 
justiciar,  nostrum  de  co'i  banco,  etc.,  habendum  illud 
cum  feodis,  vadiis  et  regardiis,  eidem  officio  debit'  et 
consuet'.  And  the  other  judges  of  the  same  bench  are 
made  by  letters  patent,  etc. 


The  Chancery. 

And  note,  that  the  court  of  Chancery  is  a  court  of  a 
high  nature,  out  of- which  court  issue  all  original  writs, 
and  there  a  man  shall  traverse  offices  and  such  things; 
and  in  that  court  women  who  are  widows,  to  the  king 
shall  be  sworn  that  they  shall  not  marry  without  the 
king's  licence,  before  the  time  that  they  be  endowed; 


THE  CHANCERY,  299 

and  it  is  said,  that  of  error  there  upon  a  patent,  or  a 
traverse,  the  same  cannot  be  reversed  elsewhere  but  in 
parliament.  Qucere,  etc.  And  in  that  court  a  man 
shall  have  remedy  for  that  which  he  can  have  no  remedy 
at  the  common  law ;  and  it  is  called  by  the  common  peo- 
ple. The  Court  of  Conscience. 

And  therefore  see  of  matters  in  conscience,  how  th'^, 
party  shall  have  remedy. 

If  a  man  hath  feoflfs  to  his  use,  and  maketh  his  will, 
and  thereby  will(>tli  that  his  feoffs  should  make  an  estate 
to  /.  for  term  of  his  life,  the  remainder  to  C.  in  fee ;  if 
the  said  /.  will  nut  take  the  estate  what  remedy  is  for 
him  in  the  remainder,  in  conscience,  and  how  he  shall 
help  himself  in  Chancery,  etc. 

A  man  shall  have  remedy  in  Chancery  for  covenants 
made  without  writings,  if  the  party  have  sufficient  wit- 
nesses to  prove  the  covenants,  and  yet  he  is  without 
remedy  at  the  common  law,  etc.  And  for  evidences, 
when  a  man  knows  not  the  certainty  of  them  nor  in 
what  they  are  contained;  it  is  usunlly  to  bo  relieved  in 
Chancery,  for  he  is  without  remedy  by  the  connnoii 
law,  etc. 

If  a  man  iiifeoifeth  another  of  certain  lands  to  his 
-use,  and  the  feoffee  selleth  the  land  to  another,  if  he 
giveth  notice  to  the  vendee  at  the  time  of  the  sale  of  the 
intent  of  the  first  feoffment,  he  is  bounden  to  perform 
the  will  of  the  first  feoffor,  as  it  seemeth  in  the  Chan- 
cery. 


300  DIVERSITY  OF  COURTS. 

A  man  was  boimden  imto  another  by  obligation  in  a 
certain  sum  of  money,  and  the  obligee  brought  an  action 
upon  the  same  deed  in  another  county  than  where  the 
obligation  was  made,  and  had  judg-ment  to  recover;  and 
the  obligor  in  Chancery  sued  to  be  relieved,  and  it  was 
surmised  that  by  that  foreign  suit  he  was  ousted  of 
divers  pleas  which  he  might  have  had,  if  the  action 
had  been  brought  in  the  county  where  the  obligation  was 
made,  and  it  was  conceived  a  good  matter  to  relieve  him 
in  equity. 

In  the  court  of  Chancery  a  man  shall  not  be  preju- 
diced by  mispleading,  or  for  want  of  form,  but  accord- 
ing to  the  truth  of  the  cause,  judgment  ought  to  be 
given  according  to  equity,  and  not  ex  rigore  juris.  And 
note  that  there  are  two  jurisdictions,  ordinary,  and 
absolute;  ordinary  is  as  positive  law,  and  absolute  is 
omnibus  modis  quibus  Veritas  schn  poterit. 

If  a  man  be  bounden  by  obligation  unto  two  men 
unto  the  use  of  one  of  them,  and  one  of  them,  viz.  is  he 
to  whose  use  it  is  not,  releaseth  to  the  obligor  all  actions, 
so  as  the  obligation  is  discharged,  he  to  whose  use  the 
obligation  w\qs  made  hath  good  remedy  in  Chancery 
by  subpoena  against  his  companion  Avho  released  him, 
but  against  the  obligor  it  seemeth  he  hath  no  remedj^,. 
for  every  man  is  bounden  to  help  himself,  and  it  is  law- 
ful for  a  man  to  get  a  discharge  of  that  which  he  i.=^ 
charged  withall,  and  in  danger  to  others. 

And  if  a  man  hath  recovered  against  another  debt  or 


THE  EXCHEQUER.  301 

damages,  and  he  hath  paid  the  same  without  any  ac- 
quittance, or  without  having  a  release,  and  notwith- 
standing the  party  taketh  execution  against  him  upon 
the  same  judgment,  he  shall  have  no  remedy  by  the 
common  law;  and  it  was  then  said  by  the  Chancellor 
that  he  shall  not  have  any  remedy  in  equity  in  this  case ; 
and  if  the  same  should  be  remedied  in  equity,  then 
every  record  should  be  examined  l)efore  him,  and  there- 
by the  common  law  overthrown. 

And  if  I  do  enfeoff  one  u[)on  trust,  and  the  feoffee 
doth  infeoff  another  of  the  same  land  upon  trust,  quaere 
if  I  shall  have  a  subpoena  against  the  second  feoffee, 
but  where  he  is  infeoffed  bona  fide,  there  the  first  feof- 
for is  without  remedy  against  the  second  feoffee,  as  it 
seemeth. 

It  is  said,  that  the  Chancellor  of  England,  whereso- 
ever he  shall  be  in  England,  hath  power  to  coniniund  a 
man  to  prison,  and  he  shall  not  be  bailed ;  quaere 
whether  the  justices  of  the  one  bench,  or  of  the  other, 
out  of  their  Courts  have  the  same  authority  or  not. 


The  Exchequer. 

The  court  which  is  commonly  called  the  Exchequer, 
is  properly  for  accomptants,  sheriffs,  escheators  and  tlie 
like,  and  there  they  are  compellable  to  make  their  ac- 
counts according  to  the  usages  aiid  customs  of  the  same 


y02  DIVERSITY  OF  COURTS. 

court,  etc.,  and  it  seemeth  to  be  a  court  which  is  much 
for  the  king's  profit,  for  there  all  remedies  are  pro- 
vided, how  the  debts  and  duties  to  the  king  shall  be 
levied. 

And  in  that  court  the  barons  are  judges  betwixt  ths 
king  and  his  subjects,  and  they  are  sworn  thereunto; 
and  fines,  issues  and  amercements  which  are  assessed 
in  other  of  the  king's  courts,  the  estreats  shall  be  made 
thereof  to  the  court  of  Exchequer,  and  there  they  shall 
write  forth  process  against  the  parties  to  answer  there- 
unto, and  to  satisfy  the  king  what  is  due  to  him,  and> 
of  divers  other  matters  they  have  power  and  authority 
by  reason  of  their  office,  etc. 


The  Cinque  Ports. 

There  are  also  divers  other  courts,  and  inferior 
places  where  justice  is  ministred,  and  in  those  places 
they  have  judges,  as  in  the  Cinque  Ports,  and  such 
places  which  have  conusance  of  pleas,  and  also  in  Court 
Barons,  in  which  courts  is  justice  done  according  to 
law,  etc.  And  although  they  of  the  Cinque  Ports  ought 
to  be  impleaded  of  their  lands  within  the  jurisdiction 
of  the  Cinque  Ports,  yet  that  holdeth  only  where  the 
tenant  sheweth  the  same,  and  taketh  advantage  thereof 
if  he  be  impleaded  in  the  king's  courts,  of  things  which 
are  within  that  jurisdiction ;  but  if  the  tenant  be  sued 


THE  CINQUE  PORTS.  303 

in  the  Common  Pleas,  for  lands  within  the  Cinque 
Ports,  if  the  demandant  doth  recover  by  default,  or  if 
the  tenant  appear,  and  plead  any  matter  which  is  found 
against  him,  so  that  the  demandant  hath  jud^nnent  for 
to  recover  the  land,  that  judgTnent  shall  hind  him  for 
ever,  etc.  But  the  tenant  might  have  alledged,  that 
the  land  was  within  the  Cinque  Ports,  and  by  such  plea 
the  king's  courts  should  be  ousted  of  the  jurisdiction, 
etc. 

And  so  it  is  of  lands  within  an  ancient  demesne,  if  a 
writ  be  brought  thereof  in  the  Common  Pleas,  if  the 
tenant  appeareth  and  pleadeth,  and  doth  not  take  ex- 
ception to  the  jurisdiction,  and  the  plea  be  fwnd  against 
him,  so  that  the  demandant  recovereth,  the  tenant  shall 
not  reverse  the  judgment  by  a  writ  of  err(»r,  because 
the  tenant  might  have  taken  exception  to  the  jurisdic- 
tion of  the  court,  and  it  should  have  been  allowed,  etc. 
But  yet  the  lord  may  reverse  that  judgment  by  a  writ 
of  deceit,  and  shall  make  the  land  ancient  demesne  as 
it  was  before,  etc. 

And  if  one  hath  conusance  of  pleas  in  a  town  or  in 
a  manor,  and  a  writ  is  brought  in  the  Common  Pleas 
of  the  same  land,  and  the  tenant  pleadeth,  aTid  judgment 
is  given  against  him,  the  recovery  is  good,  for  it  is 
within  the  power  of  the  king,  and  the  writ  of  the  Com- 
mon Pleas  doth  take  place  there ;  and  if  the  bailiff,  or 
lord  doth  not  demand  conusance,  the  judgment  is  good. 
But  in  another  action,  the  bailiff  shall  have  conusance 


304  DIVERSITY   OF  COURTS. 

for  that  the  nature  of  the  land  is  not  charged,  and  so 
see  that  where  a  man  hath  conusance  of  plea,  etc.,  it 
ought  to  be  demanded  by  the  bailiff,  or  the  lord,  and 
the  tenant  shall  not  demand  the  same,  if  he  be  im- 
pleaded in  the  king's  court ;  but  of  the  ancient  demesne 
there  it  behoveth  the  tenant  to  shew  the  same,  and  plead 
to  the  jurisdiction,  etc.,  if  he  will  have  advantage  there- 
of, etc. 

And  so  note,  that  in  the  Cinque  Ports  there  is  such 
a  liberty  that  the  lands  and  tenements  are  pleadable 
there  before  the  barons,  etc.,  and  yet  if  one  be  impleaded 
at  the  Common  Law  of  lands  within  the  Cinque  Ports, 
the  barons  shall  not  have  conusance  of  the  plea,  but  the 
tenant  may  plead  the  same  to  the  jurisdiction  in  abate- 
ment of  the  writ,  etc. 


The  Court  Baron. 

Note  also  that  there  is  another  court  which  is  called 
Court  Baron,  in  which  court  the  suitors  are  tk€  judges, 
and  not  the  steward ;  and  they  hold  plea  of  contracts 
within  the  jurisdiction,  etc.,  and  yet  it  is  said  by  some, 
that  the  defendant  shall  not  shew  that  the  contract  was 
made  out  of  the  jurisdiction,  and  pray  that  the  plain- 
tiff be  examined  as  in  a  court  of  Pipowder. 

The  judges  of  the  Court  Baron  have  authority  to  hold 
plea  before  them  of  debt  upon  contracts,  or  detinue,  but 
not  of  d'^timip  rf  charters,  nor  actions  of  debt  upon  a 


THE  COURT  BARON.  305 

judgment  in  a  court  of  record;  hut  otherwise  I  think 
it  is  of  a  recovery  in  the  same  court ;  nor  shall  they  hold 
plea  of  maintenance,  forgery  of  false  deeds,  of  deceit, 
nor  of  decies  tantura,  nor  of  pleas  of  accounts,  for  they 
have  not  authority  to  assign  auditors.  They  shall  not 
hold  plea  of  deht  above  the  sum  of  forty  shillings,  un- 
less it  be  by  prescription;  and  they  shall  not  hold  plea 
of  freehold  by  plaint,  but  by  a  writ  of  right  they  may. 
But  if  a  judgment  be  given  of  freehold  upon  a  plaint, 
it  is  said  it  is  good  until  it  be  reversed  by  a  writ  of  false 
judgment,  tamen  qucere,  etc. 

And  note  for  what  suit  a  man  shall  be  judged  in  a 
Court  Baron,  and  it  is  said,  that  it  is  where  a  man  is 
seised  of  lands  in  fee-simple,  and  which  he  holdeth  by 
service  of  suit  at  the  lord's  manor,  that  suit  is  properly 
■suit-service,  and  for  such  suit  he  shall  be  judged  in  a 
Court  Baron,  and  for  no  other  suit  as  it  is  said,  etc. 

And  qucere  also,  when  erroneous  judgments  are  given, 
how  they  shall  be  reversed,  viz.  when  by  writ  of  false 
judgment,  and  when  by  a  writ  of  error.  And  some  say, 
that  in  all  courts  where  the  ])arty  might  remove  the 
plea  by  a  recordare  upon  a  judgment  given,  in  such 
courts  a  writ  of  false  judgment  lioth;  as  in  ancient 
Demesne,  Court  Baron,  County  Court,  and  Hundred; 
but  in  other  courts  which  are  of  record,  the  plea  shall 
be  removed  by  a  certiorari,  and  upon  judgment  given 
in  such  courts  which  are  of  record,  it  shall  be  reversed 
by  writ  of  error,  etc. 
20 


306  DIVERSITY  OF  COURTS. 

And  if  a  man  recovereth  in  a  court  of  record  by  erro- 
neous judgment,  and  sueth  not  execution,  some  say, 
that  a  writ  of  error  lieth,  and  the  party  shall  have  a 
supersedeas  if  he  will  pray  the  same ;  but  if  a  man  hath 
judgment  in  a  Court  Baron,  and  taketh  not  forth  execu- 
tion, no  writ  of  false  judgment  lieth;  qucere  the  reason 
thereof,  and  what  the  law  is  in  that  case. 

And  note,  that  sometimes  the  sheriff  is  judge,  as  in 
re-disseisin,  waste,  and  admeasurement,  and  the  process 
shall  be  served  by  the  baily,  as  is  said. 

And  note,  that  the  sheriff  is  an  officer  to  the  king's 
court,  to  execute  the  process  thereof;  yet  sometimes  the 
coroner  is  the  officer  to  the  court  where  defect  is  found 
in  the  sheriff,  etc.,  so  that  he  cannot  by  law  indifferently 
execute  the  process  as  for  divers  apparent  causes,  yet 
if  the  sheriff  dieth,  the  process  shall  not  go  to  the 
coroner,  but  shall  stay  till  another  sheriff  is  chosen,  etc. 
And  because  the  sheriff  is  an  officer  appointed  by  the 
law  to  attend  the  king's  courts,  a  man  shall  not  take 
an  averment  against  the  return  of  the  sheriff  directly, 
and  the  reason  is,  because  where  justice  ought  to  be 
ministred  and  executed,  those  who  have  the  government 
of  the  law  ought  to  repose  trust  and  confidence  in  some 
person ;  and  if  every  one  might  aver  against  that  which 
the  sheriff  doth,  then  justice  should  not  be  executed, 
but  should  for  ever  be  delayed,  etc. 

The  means  and  the  remedy  how  a  man  may  come  to 
his  due,   and  to  that  which   is  wrongfully  kept  from 


THE   COURT  BARON.  307 

him,  and  that  is  by  plea,  and  tliis  word  is  general,  and 
hath  divers  effects  implied  therein,  and  may  be  divided 
into  divers  branches,  viz.  into  pleas  of  the  crown,  as 
appeals  of  death,  robbery,  rape,  felony,  and  divers  other 
things,  etc.,  and  into  actions  real,  whereby  lands,  tene- 
ments, rents,  and  other  hereditaments  are  demanded, 
as  writs  of  right,  formedon,  etc.,  or  actions  possessory, 
as  writs  of  entry,  assise  of  mort  d'ancestor,  cosinage  and 
the  like,  etc.  And  it  may  also  be  divided  into  actions 
personals,  as  debt,  trespass,  detinne,  etc.,  and  into  ac- 
tions mixt,  as  into  assizes,  and  actions  of  waste,  which 
are  as  well  in  the  realty  as  in  the  personalty.  A  per- 
sonal plea  may  be  divided  into  two  parts,  one  into  a 
mere  personal  plea,  as  an  action  of  debt,  detinne,  where 
none  hath  interest  bnt  the  parties  themselves,  the  plain- 
tiff and  the  defendant.  And  the  other  part  is  mixt 
in  the  crown ;  the  plaintiff  and  the  defendant  have  not 
the  sole  interest  in  those  actions,  bnt  the  king  hath  an 
interest  in  them  also  to  have  a  fine;  as  in  an  action  of 
trespass,  vi  et  armis,  and  that  is  an  action  mixt  with 
the  pleas  of  the  crown,  etc. 

And  note,  that  in  matters  of  the  crown,  for  such  for 
which  a  man  shall  suffer  death,  some  may  be  principals, 
and  some  accessaries,  as  murder,  felony,  rape,  and  the 
like;  but  in  liigh  treason  I  conceive  all  are  principals, 
and  in  petit  treason  there  may  be  principal  and  acces- 
sary as  well  as  in  felony. 

In  a  praemunire  all  are  principals,  and  in  cutting  out 


^(j§  DIVERSITY   OF  COURTS. 

of  tongiies,  and  putting  out  of  eyes,  there  may  be  an 
accessary  as  well  as  a  principal,  as  is  said,  etc. 

In  robbery  all  are  principals  who  are  present  at  the 
time  of  the  robbery  done,  otherwise  it  is  in  murder ;  for 
if  one  be  present  and  doth  nothing,  he  is  an  accessary, 
and  not  a  principal,  etc.     In  mayhem  some  say,  that 
all  are  principals,   as  well  he  who  is  comforting  and 
abetting,  as  he  who  giveth  the  mayhem ;  as  it  is  in  tres- 
pass, tamen  quare,  for  I  conceive  the  law  to  be  con- 
trary, etc.     And  it  was  said,  that  if  a  man  be  present 
at  the  death  of  a  man,  and  movetli  another  to  kill  the 
man,  that  he  is  a   principal,   notwithstanding  that  he 
giveth  him  not  any  stroke,  and  notwithstanding  that  the 
count  in  every  appeal  is,  that  every  principal  did  mor- 
tally strike  and  wound  him,  etc.,  but  those  are  words  of 
form,  and  the  blow  of  him  that  struck  is  the  stroke  of 
him  who  commanded  him  when  he  was  present. 

And  it  is  to  know  that  for  such  things  for  which  a 
man  deserveth  death,  there  are  two  ways  to  bring  him 
to  answer  the  same ;  one  by  appeal,  which  is  at  the  suit 
of  the  party,  the  other  is  by  way  of  Indictment,  which 
is  at  the  king's  suit,  etc.  And  for  a  mayhem  the  party 
shall  have  an  appeal  of  mayhem,  wherein  he  shall  re- 
cover damages,  and  no  death  shall  follow,  etc.,  and  see 
the  appeal  folloAving,  and  first  of  the  appeal  of  the  death 
of  a  man,  etc. 


AN  APPEAL  OF  MURDER.  309 


An  appeal  of  murder. 

I  H.  hie  instanter  appdlat  \V.  F.  de  morte  H.  C. 
fratris  sui,  pro  eo  quod  cum  predict.  II.  fuit  in  pace 
dei  et  dom.  regis  apud  D.  tali  die,  bora,  et  ayino,  ibi 
venit  W.  F.  uti  fclo  dom.  regis,  in  assidtu  premeditat' 
vi  et  armis,  etc.  Et  in  ipsum  H.  adtunc  et  ibid,  felo- 
nice  insultmn  fecit,  et  cum  quodam  gladio  precii  12  d. 
quem  ipse  in  manu  sua  dcxtra  adtunc  et  ibidem  tenuit 
predict.  H.  super  caput  suum  percussit  et  unam  plagam 
mortalem  in  longitudine  duorum  pollicum  in  antenori 
parte  capitis  sui  usque  ad  cerebrum  eidem  11.  adtunc 
et  ibid,  felonice  dedit,  de  qua  quidem  plaga  pred.  H. 
per  3  dies  liunc  proxime  sequentes  languebat  et  tunc 
ibid,  obiit ;  or  immediate  obiit.  Et  sic  idem  lohannes 
ut  felo  dom.  regis  pred  II.  felonice  interfecit  et  mur- 
dravit  contra  pacem  dicti  dom.  regis,  coronam  et  dig- 
nitatem suas,  et  quod  hoc  fecit  nequiter  et  ut  felo  con- 
tra pacem  dei  et  dom.  regis,  pred.  lohannes  offert  hoc 
disrationare  prout  curia  dom.  regis  hie  consider averit, 
etc. 

And  it  seems  the  appeal  of  ninrdcr  onglit  to  be 
brought  within  tlio  vear  and  a  (hiv  after  the  (k'ath  of 
liini  Avho  is  mnrdered  ;  and  in  an  appeal  the  party  hath 
two  issnes,  to  pnt  himself  npon  the  jiirv  to  try  if  he  be 
ii'niltv  or  not,  or  to  wage  battle,  and  to  make  the  bat- 
tle with  the  appellant ;  and  if  he  do  gage  battle  he  ought 


310  DIVERSITY  OF  COURTS. 

to  design  the  battle  in  his  proper  person,  and  bj  no 
champion.     But  it  is  otherwise  in  a  writ  of  right,  etc. 

And  there  are  divers  causes  to  oust  the  defendant  in 
the  appeal  of  battle,  for  it  is  said,  that  if  an  infant  with- 
in age  bringeth  an  appeal,  and  the  defendant  sheweth 
that  he  is  within  age,  etc.,  the  justices  have  been  of 
opinion  that  he  shall  be  put  to  answer  the  appeal  of  the 
appellant  being  within  age,  and  the  defendant  hath  lost 
the  advantage  to  wage  the  battle,  because  it  was  his 
own  act.  And  I  conceive  that  if  a  woman  bringeth  an 
appeal  of  the  death  of  her  husband  against  another,  the 
defendant  shall  lose  the  advantage  of  battle ;  for  he  can- 
not combat  or  derain. battle  with  a  woman,  etc.  And 
if  a  party  be  indicted  of  the  felony  or  murder,  etc.,  he 
shall  not  wage  battle. 

And  see  that  in  an  appeal  of  the  death  of  a  man 
against  two,  the  one  as  principal,  and  the  other  as  ac- 
cessary, and  they  waged  battle,  and  the  plaintiff  de- 
murred upon  the  plea,  and  it  was  said,  that  the  acces- 
sary should  not  be  put  to  answer  till  the  principal  was 
attainted  or  acquitted ;  yet  it  is  said,  that  the  accessary 
should  answer  presently,  but  the  issue  should  not  be 
tried  till  the  principal  were  attainted  or  acquitted  ;  and 
if  the  principal  be  acquitted  the  other  issue  should  not 
be  tried. 

And  I  conceive  that  in  everv  case  of  felonv  where  a 
man  is  indicted  as  principal,  and  afterward  hath  his 
pardon,  or  forjureth  the  realm,  that  in  those  cases  and 


AN  APPEAL  OF  MURDER.  311 

the  like  the  accessary  shall  not  be  arraigned,  because 
that  when  the  principal's  life  is  pardoned,  in  what  man- 
ner soever  it  be,  the  felony  is  determined,  and  by  con- 
sequence acquitted,  and  by  the  same  reason  the  acces- 
sary is  discharged.  But  quaere  what  the  law  is  if  the 
principal  have  his  clergy. 

And  see  that  where  there  are  three  brothers,  and  the 
middlemost  killeth  his  eldest  brother,  the  youngest 
brother  shall  have  the  appeal,  and  yet  he  is  not  his 
heir.  The  same  law  where  the  eldest  brother  killeth 
his  father,  the  youngest  shall  have  the  appeal  if  there 
be  but  two  brothers.  And  where  the  Wife  killeth  her 
husband,  the  heir  shall  have  the  appeal,  as  it  is  said. 
Qucpve  what  the  law  is  in  the  cases  before,  etc. 

And  the  process  in  an  appeal  of  death  is  one  capias, 
and  one  exigent,  etc.,  but  in  an  appeal  of  robbery,  an 
appeal  of  rape  and  mayhem,  the  process  is  two  capias, 
and  one  exigent,  etc.  And  note  that  a  man  can  never 
have  an  appeal  of  robbery,  rape,  or  mayhem  by  descent, 
for  the  same  shall  never  descend ;  but  it  is  otherwise  of 
murder. 

x\nd  also  note,  that  the  a])peal  shall  not  abate,  if  in 
the  declaration  be  the  year,  day,  and  other  tinio  when 
the  felony  was  done,  and  it  shall  not  abate  for  want  of 
fresh  suit,  if  it  be  not  within  the  year  and  the  day,  and 
that  is  by  the  statute  of  Gloucester,  etc. 

In  an  appeal,  if  the  defendant  plead  that  the  plaintiff 
is  a  bastard,  and  he  is  certified  to  be  mulier,  yet  the  de- 


312  DIVERSITY  OF  COURTS. 

fendant  shall  be  received  to  plead  Not  guilty,  because 
at  the  beginning  when  he  alleged  bastardy,  he  might 
have  pleaded  over  to  the  felony,  because  he  demanded 
another  trial,  for  the  one  is  triable  by  the  record,  and 
the  other  by  enquest.  But  of  such  matter  which  is 
triable  by  enquest,  if  he  pleadeth  to  the  felony,  all  the 
same  shall  be  tried  by  one  trial,  and  by  one  enquest. 
In  an  assize,  if  the  tenant  alledge  bastardy  in  the  plain- 
tiff, and  the  bishop  doth  certify  mulierty,  yet  the  assize 
shall  be  taken  to  enquire  of  the  seisin  and  disseisin; 
queers. 

And  quaere  if  a  man  in  an  appeal  plead  a  plea  which 
is  triable  in  another  county,  if  he  shall  plead  over  to 
the  felony,  because  he  demandeth  two  trials. 


Appeal  of  robbery. 

The  writ  of  appeal  of  robbery  beginneth  thus : 
A.  B.  nuper  de  London  generosus,  attachiatus  fuit 
ad  respondendum,  R.  F.  generoso  simul  cum  D.  nuper 
de  F.  in  suburbiis  London,  de  robberia  et  pace  domim 
regis  nunc  fracta,  unde  cos  appellat,  et  sunt  plegii  de 
prosequend.  A.  B.  et  C.  et  unde  idem  K.  in  propria 
persona  sua  instanter  appellat  pred.  C.  A.  de  eo  quod 
ubi  idem  R.  fuit  in  pace  dei  et  domini  regis  nunc  apud 
London,  viz.  in  parochia  sancti  Dnnstoni  in  Fleet-street 
in  suburbiis  Londini,  or,  apud  talem  villam  in  tali  comi- 


APPEAL  OF  ROBBERY.  313 

tatu,  20  Octobris  anno  regni  regis  nunc  17.  circa  horam 
septiniam  post  meridiem  ejusdem  diei  venerunt  tarn 
pred.  W.  I.  et  K.  qui  modo  non  comparent,  quam  pred. 
A.  qui  modo  comparet,  felonice  ut  felones  dom.  regis 
nunc  insidiando  et  insult'  premeditat'  contra  pacem  regis 
nunc  coronam  et  dignitatem  suas  die,  anno,  horn  jjaro- 
chia,  et  warda  pred.  or  villa  et  com.  predict.  Et  pred. 
W.  unam  galeam  precii  26  s.  8  d.  et  unam  crateram  ar- 
genteam  et  deauratam  precii  40  s.  de  honis  et  catallis 
pred  R.  adtunc  et  ibid,  invent,  felonice  furatus  est, 
cepit  et  asportavit.  Et  pred.  C.  A.  et  I.  K.  die,  anno, 
parochia  et  warda  pred.  or  villa  et  comitatu  pred.  felo- 
nice confortaverunt,  sustentaverunt  et  auxiliaverunt 
pred.  W.  ad  feloniam  pred.  informa  pred.  faciend'  et 
perpetrand'  ac  eutn  tunc  et  ibidem  ad  feloniam  illam 
factam,  scientes  eum  feloniam  illam  sic  fecisse,  recep- 
taverunt.  Et  cjuam  cito  idem  felones  felonias  predictas 
in  forma  predicta  fecissent,  fugierunt,  predictus  R.  eos 
recenter  insecutvs  full  de  ivarda  in  ivardam  (if  the  ap- 
peal be  brought  in  London),  or  de  villa  in  riUam,  (if 
it  be  brought  in  any  connty)  usque  ad  quatuor 
wardas  propinquiores.  Et  ulterius  qnousque,  et  c. 
Et  si  predictus  felo.  qui  modo  comparet,  feloniam  pre- 
dictam  vidt  contradiccre,  predict.  TJ.  hoc  paratus  est 
verificare  et  versus  cum  probare  prout  curia,  etc. 

And  the  like  declaration  is  in  burning  of  houses,  and 
of  burglary,  mutatis  mutandis. 

And  the  defendant  in  this  api^^al  shall  have  the  same 


314  DIVERSITY  OF  COURTS. 

trial  as  he  shall  have  in  the  appeal  before  rehearsed,  to 
put  himself  upon  the  issue  triable  by  the  enquest,  or 
to  wage  battle  if  he  pleaseth. 

But  there  are  certain  things  which  shall  put  the  same 
from  that  advantage,  that  he  shall  not  wage  battle,  etc., 
viz.  If  the  defendant  be  indicted  of  the  same  felony, 
etc.,  and  if  the  plaintiff  be  mayhemed  by  the  defendant, 
or  by  another  as  I  conceive ;  or  if  the  defendant  be  taken 
in  the  maner,  or  if  the  plaintiff  l)e  within  age,  or  above 
the  age  of  forty  years,  or  if  the  plaintiff  be  a  woman 
or  the  like. 

And  note  that  if  the  appeal  of  murder,  robbery,  or 
rape  be  brought  in  the  King's  Bench,  and  issue  be  taken 
before  the  justices  of  assize,  if  the  plaintiff  be  non-suit, 
they  have  not  power  to  arraign  the  defendant ;  but  if 
the  appeal  be  brought  l)efore  them,  and  afterwards  the 
plaintiff  is  non-suit,  it  is  otherwise  as  it  said. 

And  there  is  another  difference  when  a  man  is  ar- 
raigned at  the  king's  suit,  and  when  at  the  suit  of  the 
party ;  for  if  he  be  arraigned  at  the  king's  suit  he  shall 
be  put  to  answer  the  felony,  whether  he  be  of  that  name 
or  of  another  name ;  and  it  shall  be  no  plea  for  him  to 
say,  that  he  is  not  of  that  surname,  nor  known  by  such 
a  name,  but  by  another  name ;  for  if  a  man  killeth  an- 
other and  is  indicted  thereof,  he  shall  answer  to  the 
felony,  and  shall  not  be  admitted  to  plead  misnomer; 
but  if  it  be  at  the  suit  of  the  party  it  is  otherwise;  as  if 
a  man  bring  an  appeal  against  another,  there  he  shall 


APPEAL  OF  ROBBERY.  315 

be  admitted  to  have  the  plea,  and  that  is  the  difference. 

Note,  that  if  a  man  bringetli  an  appeal  of  the  death 
of  a  man,  who  hath  lawful  cause  to  have  the  appeal,  and 
after  declaration  he  is  non-suit,  the  defendant  shall  be 
arraigned  anew  at  the  king's  suit ;  but  if  the  heir  of  the 
dead  sueth  the  appeal,  his  wife  being  alive,  and  after 
declaration  the  heir  is  non-suit;  the  defendant  shall 
not  be  arraigned  a-new  at  the  king's  suit,  because  that 
none  could  sue  the  appeal  but  the  wife,  and  so  the  decla- 
ration was  without  warrant.  And  quwre,  how  that  mat- 
ter may  appear  to  the  court. 

And  if  one  be  acquitted  in  appeal,  or  indictment 
wherein  there  is  no  error  in  the  original ;  he  shall  be 
arraigned  de  novo  at  the  king's  suit,  although  that  error 
be  in  the  capias  or  exigent.  But  if  error  be  in  the 
original,  and  he  is  acquitted,  he  shall  be  arraigned  de 
novo  at  the  suit  of  the  king,  because  that  his  arraign- 
ment was  never  warranted  but  without  warrant ;  for 
when  the  king  is  ascertained  of  a  felon,  and  of  the  day 
and  year,  if  the  felon  be  not  lawfully  acquitted  of  the 
same  felony  he  shall  be  arraigned  at  the  king's  suit. 
But  if  he  be  once  lawfully  acquitted  of  the  felony,  he 
shall  never  \)\\\  his  life  in  hazard  again  for  the  same 
felony,  if  it  be  not  for  murder,  in  which  case,  it  is 
said,  that  if  a  murderer  be  acquitted  within  the  year  at 
-the  king's  suit,  he  may  be  aftenvards  in  an  appeal  ar- 
raigned within  the  year  at  the  suit  of  the  party,  etc. 

And  if  an  appeal  of  murder  be  brought  before  the 


316  DIVERSITY   OF  COURTS. 

sheriff  and  coroner  in  the  county,  it  is  said,  that  it  may 
be  removed  into  the  King's  Bench  by  a  writ,  which 
shall  be  directed  to  the  coroner,  and  not  to  the  sheriff, 
because  that  the  coroner  hath  the  record;  yet  I  think 
the  law  is  otherwise. 

And  if  one  be  indicted  for  mnrder,  and  afterwards  an 
appeal  is  brought  against  him,  and  after  declaration  the 
plaintiff  is  non-suit,  the  appellee  shall  be  arraigned  at 
the  king's  suit  upon  the  declaration,  and  not  upon  in- 
dictment, as  it  is  holden  in  4  £".  4. 

Note,  that  it  was  said  by  some  justices  in  times  past^ 
that  in  every  case  where  the  defendant  pleadeth  a  mat- 
ter, whereby  he  proveth  that  the  action  doth  not  lie  for 
the  plaintiff,  as  bastardy,  or  never  accoupled  in  loyal 
matrimony,  etc.,  there  he  need  not  to  answer  to  the 
felony ;  but  if  he  pleadeth  a  release  in  bar,  then  he  ought 
to  plead  to  the  felony,  because  it  is  not  denied  by  him 
that  the  action  once  lay  for  the  plaintiff,  for  when  he 
pleadeth  to  the  felony,  then  he  confesseth  that  the  plain- 
tiff is  such  a  person  who  can  maintain  the  action;  yet 
it  was  said  to  the  contrary,  that  he  shall  not  plead  ta 
the  felony  in  favorem  vltce,  where  otherwise  if  the  plea 
were  found  against  him,  he  should  be  attainted,  and  the 
felony  not  enquired  of,  and  that  seemeth  to  be  both  rea- 
son and  law,  etc. 

And  note,  that  when  a  man  is  found  guilty  for  mur- 
der or  felony,  etc.,  for  which  he  suffereth  death,  he  may 
pray  his  book  to  save  him  if  he  be  a  clerk,  and  shall 


APPEAL  OF  ROBBERY.  317 

have  it  if  be  can  read.  But  if  that  bigamy  at  another 
time  convicted,  be  alledged  against  him,  and  proved, 
then  he  shall  not  have  his  clergy. 

And  it  was  said,  that  if  the  ordinary  refusetli  a  clerk 
generally,  or  specially,  that  the  judge  may  compel  biin 
to  accept  the  felon.  But  the  old  law  was,  that  if  the 
ordinary  had  refused  liim  specially,  as  to  say,  iion  liahct 
vestem  clericalem ,  non  liahet  tonsuram;  yet  tbo  judge 
might  compel  him  to  accept  of  him.  But  if  the  ordi- 
nary do  refuse  him  generally,  the  judge  cannot  compel 
him  to  accept  of  him,  because  there  may  be  some  cause 
wherefore  the  ordinary  l)y  tlie  law  of  holv  church  ought 
not  to  receive  him.  But  that  opinion,  as  it  was  said, 
was  altered  in  the  time  of  William  Hussey,  and  his 
reason  was,  that  if  this  judge  be  his  judge,  where  the 
ordinary  refusetli  him  si^ecially,  it  is  as  great  reason 
that  he  shall  be  his  judge  where  he  refusetli  him  gen- 
erally. 

And  see,  that  those  who  are  so  attainted  of  murder, 
or  of  other  felonies,  and  for  such  things  as  they  shall 
suffer  death,  they  sliall  forfeit  their  lands  and  tene- 
ments, and  their  goods  and  chattels  for  ever,  and  the 
king  sliall  have  the  lands  for  a  year  and  a  day,  and 
then  the  lords  of  whom  the  lands  are  holden  shall  have 
them.  But  he  who  is  attainted  of  treason,  the  king 
shall  have  all  his  lands,  as  well  those  which  are  holden 
of  other  lords  as  those  which  are  holden  of  himself,  etc. 
And  if  a  man  hath  land  in  the  right  of  his  wife,  and  is 


318  DIVERSITY   OF  COURTS. 

attainted  of  felony,  the  land  shall  be  forfeited  for  the 
term  of  his  life ;  and  it  was  said,  that  if  before  the  at- 
tainder, he  and  his  wife  were  disseised,  and  afterwards 
he  were  attainted  and  restored  to  the  king's  peace;  yet 
they  could  not  have  an  assize.     Tamen  qucere. 


Appeal  of  rape. 

Note  also  that  the  appeal  of  rape  beginneth  thus ; 

Robertus  Wood  nuper  de  A.  in  comitatu  Salop  cler- 
icus,  diet.  R.  W.  nuper  de  A.  in  comitatu  predict'  ca- 
pellaniis  rector  ecclesice  parochialis  de  A.  in  comitatu 
predict,  or  thus ;  nuper  de  D.  in  comitatu  predict,  gent, 
alias  diet.  R.  S.  nuper  de  D.  in  com.  predicto  yeoman  at- 
tachiatus  fuit  per  corpus  suum  ad  respondendum  Alicice 
G.  de  raptu  ipsius  Alicice,  et  pace  dom.  regis  nunc 
fracta,  unde  eum  appellat.  Et  sunt  plegii  de  prose- 
quend.  A.  D.  de  C.  in  comit.  C.  gentleman,  et  E.  I.  de 
M.  in  comitat.  C.  yeoman,  etc.  Et  unde  eadem  Alicia 
in  predict,  persona  sua  instanter  appellat  predict. 
R.  W.  de  eo  quod  uhi  predict.  Alicia  fuit  in  pace  dei 
et  domini  regis  nunc  apud  A.  predict,  in  comit.  Salop, 
8  die  mensis  Maii  ann.  regni  dom.  regis,  17.  circa  ho- 
ram  sextant  post  meridiem  ejusdem  diei,  ibidem  venit 
predict.  8.  felonice  ut  felo  predict,  domini  regis  nunc 
insidiand.  et  insultu  premeditato,  contra  pacem  ejusdem 
dom.  regis,  coronam  et  dignitatern  suas,  die,  anno,  bora. 


APPEAL  OF  MAYHEM.  319 

et  loco  in  comltatu  predict,  et  in  prefatam  Aliciam  ad- 
tunc  et  ibid,  insultum  fecit,  et  ipsam  adtunc  et  ibid, 
de  virylnitate  defioruit,  contra  voluntatem  suam  rapuit 
et  carnalitcr  cognovit,  et  sic  predict.  R.  S.  predict.  Ali- 
ciam raodo  et  forma  predict'  rapuit,  et  quam  cito  idem, 
felo  feloniam  et  raptum  predict,  fecissit,  fug  it,  dictaq; 
Alicia  ipsum  recenter  insecuta  fuit  de  villa  in  villam 
usq;  quatuor  villas  propinquiores,  et  ulterius  quousq; 
etc.  Et  si  idem  felo  feloniam  et  raptum  predict,  in 
forma  predict,  imposit'  dcdicere  velit,  predict.  Alicia 
hoc  parata  est  verificare  et  versuseum  probare,  prout 
curia,  etc. 

And  if  a  man  siieth  an  appeal  of  the  rape  of  his  wife, 
although  she  be  not  his  wife  in  right,  but  in  possession, 
yet  the  appeal  doth  well  lie  as  is  said ;  otherwise  it  is  in 
an  appeal  of  murder  brought  by  a  woman  of  the  death 
of  her  husband,  for  there  it  is  a  good  plea,  that  thej 
were  never  lawfully  coupled  in  matrimony. 


Appeal  of  mayhem. 

See  also  that  the  appeal  of  mayhem  is  as  follow^eth : 
viz. 

I.  N.  in  propria  persona  sua  hie  instanter  appellat 
W.  de  F.  de  eo  quod  cum  idem,  quaere  tali  die  et  anno, 
fuit  in  pace  dei,  et  dom.  regis  nunc,  etc.,  apud  talem 
villam  in  tali  comltatu  circa  horam  sextam,  etc.  Thi 
venit  predict.  W.  vi  et  armis,  viz.  baculis  ut  felo  domini 


320  DIVERSITY  OF  COURTS. 

regis  nunc  insidiand.  et  ex  insultu  premeditat'  adtunc 
et  ibid,  in  dictum  I.  insultum  fecit  et  adtunc  et  ibid, 
eum  quodam  baculo  precii,  etc.,  quern  predict.  W.  in 
manibus  suis  adtunc  et  ibid'  teyiuit,  predict,  querentem 
super  brachium  dextrum  felonice  tunc  percussit,  per 
quod  vence  et  nervi  brachii  sui  predict,  restricti  fuerunt 
annexi,  et  mortificat'  devenerunt ;  or,  cum  quodamgla- 
dio,  vel  cultello  precii,  etc.,  quern  defendens  in  manibus 
suis  adtunc  et  ibid,  tenuit  manum,  dexteram,,  vel  polli- 
cem  manus  dexterce,  vel  aliud  membrum,  vel  auriculam, 
vel  aliquam  juncturam  membri  querentis  felonice  am- 
putavit,  iiel  oculum  suitm  evulsit,  vel  denies  suos  ante- 
riores  fregit  et  deposuit,  et  sic  idem  defendens  ut  felo 
dom.  regis  predict,  quer.  adtunc  et  ibid,  felonice  may- 
lieymavit,  contra  pacem  dicti  dom.  regis,  coronam  et 
dignitatem  suas.  Et  si  defendens  hoc  velit  dedicere, 
querens  hoc  paratus  est  versus  eum  probare,  prout  curia 
dom'  regis  de  eo  consideraverit ,  etc. 

And  notwithstanding  that  the  plaintiff  declare  in  an 
appeal  of  mayhem,  that  the  defendanthath  mayhemed 
him  feloniously,  yet  the  defendant  shall  not  suffer  the 
punishment  of  death,  but  shall  answer  damages  accord- 
ing to  the  greatness  and  grievousness,  of  the  offence, 
etc.  And  if  the  plaintiff  declareth  in  an  ap})eal  of 
mayhem,  etc.,  and  the  defendant  prayeth  that  it  may 
be  viewed  if  it  be  a  mayhem  or  not,  quaere,  if  the  jus- 
tices say,  that  he  is  mayhemed,  if  it  be  peremptory  to 
the  defendant,  so  that  he  shall  not  be  afterwards  receiv- 


APPEAL  OF  MAYHEM.  321 

able  to  plead  Xot  guilty  to  it,  or  any  other  bar.  And  I 
conceive  it  is  peremptory,  etc.  And  in  appeal  of  may- 
hem the  plaintiff  declared,  that  the  defendant  struck 
liini  upon  the  head,  so  that  he  had  lost  his  hearing,  and 
because  the  justices  talked  to  him,  and  well  perceived 
that  he  could  hear  they  said,  that  the  plaintiff  should  be 
fined,  etc. 

And  see  that  if  the  defendant  in  an  appeal  of  may- 
liem  saith,  that  the  plaintiff  at  another  time  brought  an 
action  of  trespass  against  the  same  defendant,  and  sued 
forth  the  same  mayhem,  and  recovered  damages  for 
the  same,  and  sued  execution,  if  the  same  be  a  good 
plea  or  not,  etc.  And  it  was  said,  that  by  an  appeal  of 
mayhem  a  man  shall  not  lose  his  action  of  trespass,  but 
contrary-wise,  he  shall  not  have  an  appeal  after  he  hath 
once  recovered  in  trespass  for  the  same  mayhem. 
Quaere  what  the  law  is. 

And  in  an  appeal  of  mayhem  against  two,  the  plain- 
tiff declared  against  one  as  principal,  and  against  the 
other  as  accessary,  and  it  was  challenged  because  that 
all  ought  to  have  been  principals,  and  the  court  said,  it 
was  in  his  election,  so  that  the  declaration  one  way  or 
the  other  was  good  enough.  And  it  was  said  by  some, 
that  it  is  no  mayhem  to  cut  off  one's  ear,  whereby  he 
loseth  his  hearing,  etc.,  but  the  beating  out  of  his  teeth 
is  a  mayhem,  because  he  may  by  them  defend  himself 
in  battle.  Quoere  if  in  the  first  case  it  be  not  a  mav- 
hem,  etc. 
21 


322  DIVERSITY   OF  COURTS. 


Indictments. 

There  are  also  indictments  upon  which  a  man  shall 
be  arraigned,  upon  which  if  he  be  found  guilty  he  shall 
be  executed,  etc.,  and  first  see  indictments  upon  the 
view  of  the  body  taken  before  the  coroner  in  the  county. 

Inquisitio  indent'  capta  apud  B.  in  com.  N.  20  die 
mensis  Mali  anno  regni  nunc  regis  Henrici  octavi  20. 
coram  I.  W.  uno  coronatorum  dom.  regis  nunc  com. 
predict,  et  super  visum  corporis  cujusdam  I.  F.  ibid, 
jacent'  interject,  per  sacramentum  I.  S.  W.  C,  etc. 
Qui  dicunt  super  sacramentum  suum,  quod  quidam 
I.  N.  de  London  gent.  20  die,  etc.,  vi  et  armis,  viz.  gla- 
diis,  baculis  et  cultellis  animo  felonico  et  ex  malitia 
precognitata  in  prefatum  I.  F.  apud  B.  predict,  insult, 
fecit  et  ipsum  verheravit,  vulneravit  et  male  tractavit, 
ac  diet.  I.  F.  cum  quodam  cultello  vocat'  a  wood  hnife 
precii  12  d.  quem  ipse  in  manihus  suis  adtunc  tenuit, 
prefat.  I.  F.  adtiinc  et  ibid,  usq;  ad  medium  corporis 
sui  fcJonice  percussit  atq;  invasit  in  profunditatem 
decern  pollic.  dans  ei  plagam  mortalem,  de  qua  quidem 
plaga  diet.  I.  F.  infra  unam  lioram  tunc  proxime  se- 
quent, adtunc  et  ibidem  obiit,  et  sic  predict.  I.  K  eun- 
dem  I.  F.  adtunc  et  ibidem  felonice  interfecit  et  mur- 
dravit,  contra  pacem  dom.  regis,  etc. 

And  it  was  said,  that  the  coroner  hath  not  power  to 
take  any  enquest  of  the  death  of  a  man,  if  not  upon  the 


INDICTMENTS.  323 

view  of  the  body;  and  if  he  do  it  in  other  manner,  all 
that  he  doth  is  void. 

And  it  hath  heen  used  in  times  past,  that  the  coroners 
might  record  the  breaking  of  prison  by  the  prisoners 
which  are  in  them,  and  if  the  prisoners  were  in  for 
felony  they  were  put  to  execution  without  further  an- 
swer;  hut  quwre  if  any  such  law  be  now  in  use. 

And  a  coroner  might  take  an  appeal  of  an  approver, 
of  felony  done  in  any  county  of  England,  and  in  the 
same  manner  he  might  make  abjuration,  if  he  con- 
fessed the  felony  to  be  done  in  another  countv  than  in 
the  county  where  the  coroner  dwelt.  And  the  reason 
was,  because  by  that  confession  they  shall  be  attainted. 
But  he  cannot  so  do  in  an  appeal  of  robbery,  if  the 
felony  be  not  done  within  the  same  county. 

There  are  also  divers  indictments,  as  of  robbery, 
burglary,  and  other  felonies  Mdiich  are  mentioned  in 
sundry  books,  and  the  course  of  them  is  well  known,  be- 
cause they  are  common,  and  in  daily  use  and  experience. 

If  a  man  be  indicted  that  he  feloniously  cut  down 
trees,  etc.,  in  such  a  place,  and  carried  them  away,  the 
party  shall  not  be  arraigned  upon  such  indictment,  be- 
cause it  cannot  be  said  to  be  felony. 

A  man  was  indicted  for  that  he  traiterously,  etc., 
had  made  TOO  s.  of  alchemv  to  the  likeness  of  the  kinsr's 
money,  and  it  was  moved  that  the  indictment  was  insuf- 
ficient, because  it  was  not  put  certain  what  money  he 
made,  groats  or  pence. 


324:  DIVERSITY   OF  COURTS. 

A  man  was  indicted,  that  whereas  another  man  was 
indicted  of  felony  who  was  put  into  the  stocks,  etc., 
that  he  entered  into  the  house  without  breaking  of  the 
same,  and  set  him  out  of  the  stocks,  and  set  him  at  lib- 
erty, and  it  was  said,  that  it  remained  in  the  pleasure 
of  the  king,  whether  he  should  have  perpetual  imprison- 
ment, or  other  pecuniary  punishment  according  to  the 
king's  ordinance,  but  he  shall  not  be  hanged,  etc. 

And  see  that  it  was  the  use  in  times  past,  that  the 
party  should  not  be  restored  to  his  goods  upon  an  indict- 
ment of  robbery,  unless  it  were  found  that  he  made 
fresh  suit,  if  he  were  not  appealed,  yet  that  law  is  al- 
tered and  changed,  and  the  party  shall  be  also  restored 
to  his  goods  where  the  felon  is  arraigned  upon  an  indict- 
ment as  well  as  upon  an  appeal,  if  the  party  giveth  evi- 
dence against  the  felon  at  the  time  of  his  arraignment, 
and  he  shall  not  be  put  to  circuit  of  action  to  sue  his 
appeal,  and  it  seemeth  to  be  good  law. 

Xote,  that  the  writs  are  the  principal  and  first  thing 
in  our  law,  whereby  a  man  shall  recover  that  which 
is  wrongfully  detained  from  him,  and  they  are  the 
foundation  of  every  suit;  and  therefore  look  when  a 
man  beginneth  his  suit  that  the  writ  be  good,  else  all 
which  followeth  will  be  nothing  worth  ;  which  writs  are 
ordained  bv  law  according  as  the  matter  is. 

And  there  see  first  the  writ  of  right  and  the  nature 
of  it,  because  it  is  a  writ  of  a  higher  nature  than  any 
other  writ  can  be;  and  the  chief  things  and  articles  of 


INDICTMENTS.  325 

that  writ  are,  the  deforcement,  the  quantity  of  the  tene- 
ments, in  what  town  the  tenements  arc,  and  that  the 
demandant  hath  a  lawful  estate  in  fee  hy  his  own  pnr- 
chase,  or  of  the  seisin  of  his  ancestor,  or  his  own  seisin, 
the  taking  of  the  explees  and  the  seisin  thereof,  in  the 
time  of  what  king,  and  in  the  time  of  peace,  and  the 
tender  of  the  demy  mark  a  good  discent,  and  in  what 
manner  he  hath  right,  and  the  averment. 

And  note,  that  the  explees  ought  to  be  of  the  de- 
mesne or  of  the  services,  and  in  a  precipe  quod  reddat 
of  the  manner  of  explees  in  services,  etc.,  and  of  the  de- 
mesnes in  sheep  and  corn,  in  pasture  in  feeding  of  cat- 
tle, of  wood,  in  selling  of  the  wood,  gardens,  in  selling 
the  apples,  or  grass,  of  villain,  is  in  base  service  to  his 
profit,  and  in  seisin  of  those  of  his  blood ;  and  for  a 
chaplain,  or  finding  of  poor  men,  the  explees  are  al- 
ledged  in  masses  and  prayers,  etc.,  and  of  a  gorge  in 
taking  of  the  fish;  of  a  mill,  in  taking  of  toll:  and 
generally  a  man  shall  alledge  explees  according  to  the 
matter  in  demand  and  the  nature  of  it. 

And  the  trial  in  this  writ  of  right  may  be  two  ways; 
the  one  by  the  grand  assize,  and  the  other  by  battle; 
l)iit  if  the  right  be  to  be  determined  by  the  battle,  it 
shall  be  done  by  champions,  and  not  by  the  ]iarties 
themselves,  as  it  is  said;  and  the  reason  is,  that  if 
any  of  the  parties  he  killed,  judgment  of  the  land  can- 
not be  given  against  a  dead  person.  Qiicvrc  if  that  be 
the  reason  or  not. 


326  DIVERSITY  OF  COURTS. 

And  it  was  said,  that  a  man  cannot  have  a  writ  of 
right  of  a  rent,  hut  only  of  a  rent-service,  for  that  other 
rents  are  against  common  right,  etc. 

And  see  that  a  writ  of  right  doth  differ  from  other 
writs  in  pleading,  for  in  a  writ  of  right,  the  tenant 
ought  to  conclude  upon  the  right.  To  conclude,  so  that 
he  hath  more  right  to  have  the  lands,  etc.,  than  the  de- 
mandant, and  not  to  conclude  judgment  of  action,  as 
the  conclusion  is  in  other  writs,  yet  the  same  holdeth 
not  in  every  case;  for  if  the  tenant  in  a  writ  of  right 
plead  a  release  collateral,  etc.,  without  warranty,  there 
the  tenant  shall  conclude  judgment  if  action,  and  not 
otherwise  as  it  seemeth ;  for  the  demandant  hath  more 
right  to  the  land  than  the  tenant  hath,  but  by  reason  of 
the  warranty  the  demandant  shall  be  barred  of  his 
action. 

And  note,  that  in  a  writ  of  right  upon  the  trial  no 
attaint  lieth ;  and  yet  in  a  writ  of  right  of  dower  an 
attaint  lieth,  which  is,  a  writ  of  right ;  but  the  reason 
is,  because  the  trial  thereof  shall  not  be  by  the  grand 
assize,  nor  by  battle,  but  by  a  common  jury,  etc. 

And  note,  that  there  are  divers  writs  of  right ;  a  writ 
of  right  which  is  triable  by  battle,  or  by  grand  assize, 
as  a  writ  of  right  of  land,  or  a  writ  of  customs  and 
services,  a  quod  permittat  in  the  debet,  writ  of  right 
of  advowson,  etc.,  and  the  like.  And  there  are  other 
writs  of  the  possession  mixt  with  the  right,  as  a  writ  of 


AN  INDICTMENT.  327 

escheat,  cessavit,  rationable  part,  etc.,  and  the  like,  but 
in  those  no  battle  nor  grand  assize  lieth. 

In  a  writ  of  customs  and  services,  the  effect  thereof 
is  the  wrongful  deforcement  in  not  doing  of  the  services 
which  ought  to  be  done  to  the  demandant  out  of  the 
land,  and  the  land  ought  to  be  shewed,  and  how  he 
holdeth  by  such  services,  and  shew  seisin  in  him  or  his 
ancestors  of  fee  and  right,  and  alledge  the  taking  of 
explees,  and  the  averment. 

The  articles  and  things  which  are  material  in  the 
writs,  appear  in  the  writs  themselves,  and  in  the  book 
of  novel  tales,  and  in  other  books,  and  therefore  they 
need  not  be  here  mentioned,  and  for  that  cause  I  omit 
them  here,  etc. 


All  indictment  upon  the  statute  of  8  H.  n. 

Jurator.  prcesent.  pro  Dom.  rege,  quod  cum  in  statu- 
to  in  parliamento  Dom.  yiuper  regis  Henrici  Anglice 
sexti  post  conquestum  apud  Westm.  anno  regni  sui  8. 
tent.  edit,  inter  cetera  ordinatum  sit  quod  si  aliqua  per- 
sona expulsa  sit  seu  disseisita  de  aliquihus  terris  et  tene- 
mentis  modo  forcibili,  aut  pacifice  expulsa  sit,  et  postea 
manu  forti  et  armis  extra  teneatur  contra  justic.  pacem 
vel  post  aliquem  taleyn  ingressum  aliquod  feoffamentum 
seu  discontinuatio  allquo  modo  inde  factum  sit  ad  jus 
possessor,   defraudend.   aut    tollend.    quod   pars    in    ea 


328  DIVERSITY   OF  COURTS. 

parte  gravata  habeat  assissam  novce  disseisince  aut  breve 
de  transgressione  versus  liujus  disseisitorem,  et  si  pars 
gravata  recuperaverit  per  assisam  vel  rationem  transgr. 
et  per  veredictum  alio  modo  per  debitam  legis  fortnam 
sit  compertum  quod  pars  defendens  in  terras  et  tenem. 
vi  ingressus  fuit,  aut  ea  per  vim  post  ingressum  tenue- 
rit,  querens  recuperet  versus  defendentem  darhno  sua 
ad  triplicem,  et  ulterius  finem  faciet  Dam.  regi,  et  re- 
demptionem  prout  in  statuio  pred.  plenius  continetur, 
etc.,  quidam  tamen  L.  C.  de  E.  in  com.  pred.  generosus 
simul  cum  quinq;  personis  juratoribus  pred.  ignotis 
statutum  illud  minime  ponderans,  die  Dom.  20  die 
Januarii  circa  horam  9  post  meridiem  ejusdem  diei  anna 
regni  Dom  regis  nunc  12  manu  forti  ac  vi  et  armis,  viz. 
baculis  et  cidteUis  in  unum  messuagium,  unum  gar- 
dinum  ducentas  acras  terrw  40,  etc.,  prati,  et  30  acras 
bosci  cum  pertinen  quorundum  E.  K.  armigeri  et  L.  M. 
armigeri,  etc.,scituat,  jacen,  et  exist  en.  in  parocliia  de  L. 
juxta  T.  in  com.  pred.  ingressus  fuit,  et  inde  ipsos 
E.  K.  ct  L.  M.  vi  et  armis,  viz.  baculis  et  cuUelUs  ac 
manu  forfi  disseisivit.  Et  ejus  inde  statum  et  pos- 
sessionem sic  per  disse  sinam  illam  habitam  et  obtent. 
cum  p-ed.  personis  ignotis  usq;  in  crastinum  diem  se- 
quentem,  viz.  13  diem  mensis  Januarii  continuavit. 
Quo  quidem  13  die  Januarii  H.  L.  de  M.  in  comitatu 
pred.  yeoman,  W.  B.  de  pred  husbandman,  et  I.  C. 
nuper  eisdem  villa  et  comitatu  laborer  apud  L.  pred. 
in  et  super  tent'  ta  pred.  una  cum  prefato  T.  C.  manu 


AN  INDICTMENT.  320 

fortl  ac  vi  et  arm-is,  viz.  hacultis,  culteUis,  gladiis, 
scidis,  arcubus  et  sagiftis  se  assemhlaverunt,  et  eadeni 
tenementa  vi  et  aj-mis  precl.  a  pred.  12  die  Jannarii 
hucusq;  injuriis  ipsius  T.  C.  et  ipsum  T.  pretensa  ten- 
uerunt  et  prefat.  E.  K.  et  L.  M.,  etc.,  inde  hucusq;  ex- 
tra tenent  in  dicti  Dom.  regis  nunc  conteniptum  ac  con- 
tra formam  statuti  pred.  et  contra  pacem  dicti  Dom 
regis,  etc. 

^Yhen  the  parties  are  at  i^siie  in  their  actions  the 
common  trial  thereof  in  onr  hnv  is  by  verdict  of  12  men, 
who  shall  be  sworn  upon  the  book  to  speak  the  tnith  ac- 
cording to  their  conscience.  And  sometimes  the  mat- 
ter shall  be  tried  by  the  bishop,  and  not  by  verdict  of 
12  men ;  as  general  bastardy  alledged  in  any  of  the 
parties  it  shall  be  certified  by  tlio  bishop,  and  in  a 
qua7^e  impedit  if  the  issue  be  joined  upon  the  institu- 
tion, it  shall  be  tried  by  the  bisliop,  for  the  same  is  in  a 
manner  a  spiritual  thing.  But  induction  shall  be  tried 
bv  a  jury,  and  also  in  a  ciuare  impedit,  if  issue  be  taken 
upon  plenarty  it  shall  be  tried  by  the  l)ishop;  but 
whether  the  church  be  void  or  not  void  shall  be  tried  by 
the  jury.  And  if  the  parties  be  at  issue  in  a  quare  im- 
pedit upon  the  ability  of  tlie  person,  whether  lie  were 
sufficiently  learned  or  not,  it  shall  be  tried  by  the  bishop 
during  the  life  of  the  clerk,  but  if  the  clerk  be  dead  it 
shall  be  tried  by  the  jury.  And  it  is  said,  that  if  bas- 
tardy or  other  the  like  thing  be  alleged  upon  a  thing 


330  DIVERSITY   OF  COURTS. 

which  is  not  but  dilatory,  it  shall  be  remanded  to  the 
bishop  to  be  tried,  etc. 

And  a  man  in  an  action  of  debt  brought  against  him 
upon  a  contract  may  wage  his  law,  to  swear  upon  a  book 
that  he  oweth  not  the  plaintiff  the  money  which  he  de- 
mandeth,  nor  any  penny  thereof;  and  he  ought  to  have 
with  him  11  more  to  swear  with  him,  that  they  believe 
in  their  conscience  that  he  sayeth  truth,  and  so  he  shall 
be  discharged;  but  if  the  action  be  brought  upon  any 
specialty,  or  upon  matter  of  record,  or  upon  a  thing 
touching  land,  etc.,  he  shall  not  help  himself  in  that 
manner,  but  shall  put  the  same  upon  the  trial  of  the 
jury,  but  he  himself  shall  not  be  admitted  to  swear,  etc. 

And  note,  that  an  oath  ought  to  have  three  compan- 
ions, truth,  justice,  and  judgment,  and  if  they  be  want- 
ing it  is  no  oath,  but  a  perjury ;  for  if  a  man  be  forced 
by  constraint  to  swear,  that  for  many  years  he  quietly 
held  such  lands,  etc.,  it  is  perjury,  not  in  him  who 
sweareth,  but  in  him  who  compelleth  him  to  swear, 
Reum  non  facit  7iisi  mens  sit  rea.  Nemo  se  circum- 
veniat  aut  seducat.  Qui  per  lapidem  false  jurat  per- 
jurus  est.  Quacunque  arte  verhorum,  jurat  aliquis, 
Deus  ita  accipit  sicut  ille  qui  jurat  intelligit.  Et  minus 
malum,  est  per  Deum  falsum  jurare  veraciter,  quam 
per  deum  verum  jurare  fallaciier.  Quanta  enim  id  per 
quod  juratur  est  magis  sanctum,  tanto  magis  est  penale 
perjurium,  etc. 


INDEX. 


A. 

PAGE 

Abusions  of  the  Common  Law 230-257 

Accessaries,  nine 56 

Accords,  final 180 

Account IGJ 

Acquittance 164 

Action 71,103,191,193 

Affernient  and  aff errors GO 

Alienations 27,  30 

Amerciaments 225,  226 

Appeals  and  Appealers 83,  85,  88,  90-97,  155-158,  309-321 

Approvers 75,  152 

Articles  of  the  coroners  enquest 54 

in  the  leet 66 

in  Eyre 218 

upon  the  stat.  Marlbridge 267 

upon  the  stat.  Merton 265 

upon  the  stat.  West.  1 269 

upon  the  stat.  West.  II 275 

Assize  of  novel  disseisin 106 

Attachments 81 

Attaints 175,  176 

Attornies 79,  111,  137 

B. 

Bail  in  appeals,  &c ...  88 

Barons  of  the  Exchequer 62 

Battle 166 

Beau  pleader 52 

331 


332  INDEX. 

PAGE 

Bigamy 1 4:5 

Burglary 50,  57,  157 

Burning  and  burners 40,  93,  155,  203 

G. 

Centuries  and  Centiners .    20^ 

Champion 196 

Chancery 298 

Charters,  Deeds,  &c 163 

Cinque  Ports 303 

Circuits 77 

Clergy 143 

Clerks 143 

Coin 37 

Combat  and  Combaters 166,  109 

Common  Pleas 29& 

Constitutions  of  King  Alfred 21 

,,       Edward  1 21 

,,  Ancient  Kings 21 

Contempts  and  Contumacies 91 

Contract 118-123 

Conusance 143 

Copyholder  and  Copyholds 126,  165 

Corn  and  Cattle  to  pay  Toll 30 

Coroners 53 

Coroners  to  receive  Appeals 24 

Court  Baron 304 

Court  of  Marshalsea 293 

Counters  or  Pleaders 79 

D. 

Defaults  of  Mag.  Charta 257-264 

Dilatory  Pleas 141 

Disseisins .     100,  233 

Distraining  Goods  forbidden 27 

Distress  and  Distresses 109,  118,  157 

Doomsdaiy  Book 127 

Doner 27 


INDEX.  333 

E. 

PAGK 

Earl  and  Earldom  20  25 

Edward  (King)  his  Ordinances 21 

England  divided  into  Counties,  &c 19 

Englisli  first  coming  into  this  Realm 18 

Englishire  Parent gl 

Escape g-^ 

Essoins  and  Essoiners 130-13(5 

Estreats  sent  to  the  Exchequer 05 

Exceptions 139-1 54 

Exchequer,  Court  of 62 

JEyre,  Office  of  Justice  in 24   217 


Fairs  and  Markets 29 

False  Latin 24_rj 

Falsifying 37  90 

Felonies  to  be  Tried  by  Appeal 26 

Festival  Days J4g 

Fines  and  Rewards 7,^ 

Forfeiture 5*^ 

Franchises 170   001 

ii-^,  --»i 

Freemen  to  meet  in  Counties,  &c 23 

Free  Tenants  to  Appear  to  Summons 26 

Frank-pledge gg 

G. 

Gaol  and  Gaolers  yg 

Gloucester 283 

•Grand  and  petit  assise IO7 

H. 

Hamsockne 50  gg 

^ei"^sy 3l|  90 

Homage  and  Fealty 178^  I79 

Hue  and  Cry 05   gj 

Hunting I74 

Husband  to  hold  the  Wife's  Inlieritance 30 


334  INDEX. 

I. 

PAGE 

Imprisonment 96,  158 

Indictments 98,  234,  322-330 

Infamous  Persons 201 

Infants  to  be  in  Ward 27 

Inferior  Courts 63 

Informers 79 

J. 

Judges  and  Judgments 74,  78,  144,  214,  277,  291 

Judgment  of  Death 206,  211 

Jurisdiction 22,  183 

Justices  in  Eyre 217 

K. 

King,  chosen 19 

King's  Courts  to  be  open 25 

King's  Bench  Court 293 

Knight's  Fees  to  the  Eldest  Son 26 

L. 

Larcenies 45-50,  95,  156 

Law  Divided 18 

Lords  of  Fees  may  Summon  Tenants 28 

M. 

Magna  Charta,  Defects  in 257-264 

Majesty  (of) 30,  88,  202 

Mainpernors 193 

Mainprisors 85 

Manslaugliter 41 

Marlbridge.  Statute  of 267 

Marshalsea 292 

Mayhem 97,  158-168,  319 

Merchants 30,  287 

Merton,  Statute  of 267 

Misadventures 56 


INDEX.  335 

N. 

PAGB 

Misnomer 161 

Murder 61,  93,  155,  204,  213,  309 

Nativo  habendo 124,  125,  137 

Neisty 122 

Ne  in  juste  vexes 128 

O. 

Oaths 178,  191 

Oath  of  Battle 169 

Oath  of  Counters 80 

Oath  of  the  King 19 

Obligations 175 

Offences  against  the  Peace 30 

Offences,  and  the  Division  of  them 30,  83 

Offences,  real  and  personal 98,  100 

Offences  venial 99 

Office  of  Coroners 52-62,  83 

Office  of  Justices  in  Eyre 228 

Ordering  of  Battle 169 

Ordinances  of  King  Edward  1 21 

Ordinary 143 

Original  of  the  Law 17 

Outlaws  and  Outlawry 159 

P. 

Parliaments 19 

Peace,  offences  against  the 17 

Penancies 214 

Perjury 33-38,  216 

Persons  above  fourteen  years  to  swear  to  the  King 23 

Personal  Actions 191 

Plaintiff 64,  92 

Plaintiffs,  who  may  be 75 

,,  who  cannot  be 75 

,,  how  lawful  men  ouglit  to  complain 76 

Pleader,  pleas  and  pleadings 93,  137 

Pledges 105.  193 


336  IxVDEX. 

PAGE 

Poor 29 

Power  of  the  Judge ■ 144 

Prerogative iqq 

Presentments  in  Eyre 24 

Principal  and  accessary 53 

Prison  and  prisoners 43 

Process  in  Appeals 85 

Proof 29 

Protection 160 

Punishments 199^  21S 

Purprestures I73 

R. 

Rape  two  ways 51,  98,  157,  318 

Receipt  and  Receiver 164 

Replication 143-154 

Replevin 109,  113 

Reprehension  Stat.  Gloucester 285 

,,  of  Circumspecte  agatis 286 

,,  Stat.  Marlbridge 267 

„  Stat.  Merton 265 

„  Stat.  West.  1 269 

,,  Stat.  West.  II 275 

Rewards  or  Fees 80 

Robbery 50,  95,  156,  312 

S. 

Salary  of  Pleaders 80 

Sanctuary 58,  59 

Satisfaction  of  Debt 222 

Saxons,  conquerors  of  Britain 18 

Seals 63 

Sheriffs  turns,  &c 23,  65,  77 

Slander 90 

Sovereign  Jurisdiction 22 

Statute  of  Debt 287 

,,  Gloucester 285 

„  Marlbridge 267 


INDEX.  337 

PAQE 

statute  of  Merton 2G7 

,,  Merchants 287 

,,  Westminster,  1st  and  2nd 2G9 

Stay  of  Judgment,  causes  for 211 

Suit  and  Suitors C4 

Summons  and  Summouei's 26,  81,  128 

Sureties 29 

T. 

Tenant  by  the  curtesy 29 

Treason. ; 39,  91 

Treasure  trove 57,  173 

Trespasses  and  wrongs 103 

Trial 329 

Trove 146 

V. 

Variance 152,  161 

Venial  trespasses,  &c 103 

View  in  Mayhem 158 

View  of  f I'ankpledge 66 

Villenage  and  niesty 122 

U. 
Usu  ry 174 

W. 

Wager  of  Law 163 

Wages 78 

Waive 123 

Widow  to  marry  with  lord's  consent 28 

Wife  may  be  endowed 28 

Women  not  to  bring  Appeals 61 

Wounds  and  wounding 57 

Wrecks 57,173 

Finis. 


UC  SOUTHER'.  REGIONS".  L'BR- 


AA    000  712  068    6 


